State of West Virginia v. Shaun Richard Duke ( 2022 )


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  •              IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    January 2022 Term                         FILED
    _____________________                  April 14, 2022
    released at 3:00 p.m.
    EDYTHE NASH GAISER, CLERK
    No. 21-0162                      SUPREME COURT OF APPEALS
    _____________________                      OF WEST VIRGINIA
    STATE OF WEST VIRGINIA
    Plaintiff Below, Respondent,
    v.
    SHAUN RICHARD DUKE,
    Defendant Below, Petitioner.
    ___________________________________________________________
    Appeal from the Circuit Court of Nicholas County
    The Honorable Stephen O. Callaghan, Judge
    Criminal Case No. 34-2020-F-51
    AFFIRMED, IN PART;
    REVERSED, IN PART, AND REMANDED WITH DIRECTIONS.
    _________________________________________________________
    Submitted: January 26, 2022
    Filed: April 14, 2022
    Matthew Brummond, Esq.                                     Patrick Morrisey, Esq.
    Public Defender Services                                   Attorney General
    Charleston, West Virginia                                  Caleb A. Seckman, Esq.
    Counsel for Petitioner                                     Assistant Solicitor General
    Andrea Nease Proper, Esq.
    Assistant Attorney General
    Charleston, West Virginia
    Counsel for Respondent
    JUSTICE WOOTON delivered the Opinion of the Court.
    JUSTICE MOATS, sitting by temporary assignment, did not participate in this decision.
    JUSTICE ARMSTEAD dissents and reserves the right to file a dissenting Opinion.
    ii
    SYLLABUS BY THE COURT
    1.     “[A] double jeopardy claim [is] reviewed de novo.” Syl. Pt. 1, in part,
    State v. Sears, 
    196 W. Va. 71
    , 
    468 S.E.2d 324
     (1996).
    2.     “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.” Syl. Pt. 8, State v. Zaccagnini, 
    172 W. Va. 491
    , 
    308 S.E.2d 131
     (1983).
    3.     “The test of Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    ,
    
    76 L. Ed. 306
     (1932), is a rule of statutory construction. The rule is not controlling where
    there is a clear indication of contrary legislative intent.” Syl. Pt. 5, State v. Gill, 
    187 W. Va. 136
    , 
    416 S.E.2d 253
     (1992).
    4.     “A claim that double jeopardy has been violated based on multiple
    punishments imposed after a single trial is resolved by determining the legislative intent as
    to punishment.” Syl. Pt. 7, State v. Gill, 
    187 W. Va. 136
    , 
    416 S.E.2d 253
     (1992).
    5.     “In ascertaining legislative intent, a court should look initially at the
    language of the involved statutes and, if necessary, the legislative history to determine if
    the legislature has made a clear expression of its intention to aggregate sentences for related
    i
    crimes. If no such clear legislative intent can be discerned, then the court should analyze
    the statutes under the test set forth in Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    , 
    76 L. Ed. 306
     (1932), to determine whether each offense requires an element of proof
    the other does not. If there is an element of proof that is different, then the presumption is
    that the legislature intended to create separate offenses.” Syl. Pt. 8, State v. Gill, 
    187 W. Va. 136
    , 
    416 S.E.2d 253
     (1992).
    6.     “‘“The test of determining whether a particular offense is a lesser
    included offense is that the lesser offense must be such that it is impossible to commit the
    greater offense without first having committed the lesser offense. An offense is not a lesser
    included offense if it requires the inclusion of an element not required in the greater
    offense.” Syl. Pt. 1, State v. Louk, 
    169 W.Va. 24
    , 
    285 S.E.2d 432
     (1981), overruled on
    other grounds by State v. Jenkins, 
    191 W.Va. 87
    , 
    443 S.E.2d 244
     (1994).’ Syllabus Point
    4, State v. Wilkerson, 
    230 W.Va. 366
    , 
    738 S.E.2d 32
     (2013).” Syl. Pt. 5, State v. Bland,
    
    239 W. Va. 463
    , 
    801 S.E.2d 478
     (2017).
    7.     “Federal and State constitutional double jeopardy principles are
    violated by serial trials for a greater offense of felony-murder and its lesser-included
    offense of robbery. U. S. Const. amend. XIV and W. Va. Const. art. III, § 5.” Syl., State
    ex rel. Hall v. Strickler, 
    168 W. Va. 496
    , 
    285 S.E.2d 143
     (1981).
    ii
    8.     Double jeopardy prohibits an accused charged with delivery of a
    controlled substance causing death, West Virginia Code § 60A-4-416 (2020), from being
    separately tried or punished for both the lesser included offense of delivery of a controlled
    substance, West Virginia Code § 60A-4-401 (2014), and the greater offense of delivery of
    a controlled substance causing death.
    9.     “‘If an indictment alleges that an offense was done in a particular way,
    the proof must support such charge or there will be a fatal variance. However, if such
    averment can be omitted without affecting the charge in the indictment against the accused,
    such allegation may be considered and rejected as surplusage if not material.’ Syllabus
    point 8, State v. Crowder, 
    146 W.Va. 810
    , 
    123 S.E.2d 42
     (1961).” Syl. Pt. 2, State v.
    Scarberry, 
    187 W. Va. 251
    , 
    418 S.E.2d 361
     (1992).
    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 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).
    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).
    12.    “‘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, along with
    other circumstances, such as the defendant’s association with or relation to the perpetrator
    and his conduct before and after the commission of the crime.’ Syllabus Point 10, State v.
    Fortner, 
    182 W.Va. 345
    , 
    387 S.E.2d 812
     (1989).” Syl. Pt. 6, State v. Foster, 
    221 W. Va. 629
    , 
    656 S.E.2d 74
     (2007).
    13.    “‘Under the concerted action principle, a defendant who is present at
    the scene of a crime and, by acting with another, contributes to the criminal act, is
    criminally liable for such offense as if he were the sole perpetrator.’ Syllabus Point 11,
    iv
    State v. Fortner, 
    182 W.Va. 345
    , 
    387 S.E.2d 812
     (1989).” Syl. Pt. 7, State v. Foster, 
    221 W. Va. 629
    , 
    656 S.E.2d 74
     (2007).
    v
    WOOTON, Justice:
    The petitioner, Shaun Richard Duke, was convicted by a jury on five drug-
    related charges. He appeals the January 28, 2021, sentencing order entered by the Circuit
    Court of Nicholas County, West Virginia. 1 He argues that his conviction and sentence
    violated the Double Jeopardy Clause of the United States and West Virginia Constitutions
    by permitting the jury to convict him of both delivery and delivery causing death; that the
    circuit court erred in failing to exclude the “jailhouse snitch’s testimony” that the petitioner
    premeditated a murder of the victim on his own, because the evidence was irrelevant to the
    unintentional and vicarious homicide charged in the indictment, and concerned an
    uncharged bad act; and that the respondent State of West Virginia’s (“the State”) evidence
    was insufficient to prove that he knowingly “contributed to the criminal act” or conspired
    with the drug dealer.
    Upon careful review of the parties’ briefs and oral arguments, the appendix
    record, and the applicable law, we find the circuit court erred in permitting the petitioner
    1
    The circuit court imposed the following sentence: one to five years of incarceration
    on Count 1, delivery of a controlled substance; one to fifteen years of incarceration on
    Count 2, delivery of a controlled substance; ten years of incarceration on Count 3,
    conspiracy to commit a felony; fifteen years of incarceration on Count 4, drug delivery
    resulting in death; and two to ten years of incarceration on Count 5, possession of Fentanyl.
    All of the sentences were ordered to run consecutively. The court also imposed a fine in
    the amount of $15,000 as part of the petitioner’s sentence imposed for Count 1 and a fine
    in the amount of $25,000 as part of the sentence imposed for Count 2.
    1
    to be convicted of both delivery of a controlled substance 2 and delivery of a controlled
    substance causing death 3 because the convictions in this case violated the constitutional
    prohibition against putting an individual twice in jeopardy. We further determine that there
    is no error in regard to the petitioner’s remaining two issues. Therefore, we reverse the
    petitioner’s convictions in regard to both Counts 1 and 2, pertaining to delivery of
    controlled substances methamphetamine and Fentanyl, and remand the case to the circuit
    court for resentencing; the remainder of the petitioner’s convictions and sentences are
    affirmed.
    I. Facts and Procedural Background
    In this case, the petitioner permitted Erica Westfall, a drug dealer, to use his
    vehicle in order to carry out the delivery of methamphetamine and Fentanyl to Teddy
    Nutter (“the victim”) and his girlfriend, Ann Russell. Both the petitioner and Ms. Westfall
    were implicated in the delivery of those controlled substances to the victim, which resulted
    in the victim’s death due to methamphetamine and Fentanyl intoxication.
    Based upon these basic facts, the petitioner was indicted on June 16, 2020,
    on five counts: (1) delivery of a controlled substance (methamphetamine), in concert with
    Erica Westfall; (2) delivery of a controlled substance (Fentanyl), in concert with Erica
    2
    See W. Va. Code § 60A-4-401(2014).
    3
    See W. Va. Code § 60A-4-416 (2020).
    2
    Westfall; (3) conspiracy to commit a felony in violation of West Virginia Code § 60A-4-
    401; (4) delivery of a controlled substance resulting in death, in concert with Erica
    Westfall; and (5) possession of Fentanyl, in concert with Erica Westfall. Critically, Count
    4 charges that the petitioner, acting in concert with Ms. Westfall,
    committed the offense of “DELIVERY OF A CONTROLLED
    SUBSTANCE RESULTING IN DEATH” by unlawfully,
    intentionally, knowingly, willfully, and feloniously delivering
    unto Teddy J. Nutter controlled substances which was [sic] the
    proximate cause of his death. SHAUN RICHARD DUKE
    acting in concert with ERICA LEIGH WESTFALL did deliver
    unto Teddy J. Nutter Fentanyl, a Schedule II Narcotic
    Controlled Substance, and Methamphetamine, a Schedule II
    Non-Narcotic Controlled Substance, which when ingested in
    combination with one another, was the proximate cause of his
    death, against the peace and dignity of the State of West
    Virginia.
    A three-day trial began on August 25, 2020. The evidence introduced
    included the testimony of Sgt. Jarred S. Bennett with the Nicholas County Sheriff’s
    Department. He testified that on September 24, 2019, he responded to a call that a deceased
    person had been dropped off at Summersville Regional Medical Center’s emergency room.
    Two individuals had dropped the body and fled the scene. Sgt. Bennett stated that from a
    description of the vehicle involved in dropping the body, Ms. Russell, the victim’s
    girlfriend, was located and stopped. 4 Sgt. Bennett testified that Ms. Russell agreed to give
    4
    The other individual was identified as Frank Young, who is not involved in this
    proceeding.
    3
    a statement. 5 She told Sgt. Bennett that Erica Westfall came to her trailer between 4:00
    a.m. and 5:00 a.m. on September 24 to sell drugs. Ms. Russell also told the officer that
    Ms. Westfall was driven to her home by the petitioner. 6
    Ms. Westfall also testified that she suffered from drug addiction and had sold
    methamphetamine and heroin to support herself for approximately a year and had sold
    drugs to both the victim and Ms. Russell. She met the petitioner four to five months prior
    to the events herein and stated that he would stop by her home a couple of times a week.
    Ms. Westfall did not have a car and would sometimes get rides with the petitioner in his
    car, which she described as a white Oldsmobile. She stated that she would give the
    petitioner drugs or cash in exchange for the transportation but never sold drugs to him.
    Ms. Westfall testified that on September 24, 2019, she received a text from
    Ms. Russell, who wanted to buy heroin. 7 She stated that the petitioner showed up at her
    house sometime just after midnight on September 24 and she informed him that she had
    Sgt. Bennett testified that both Ms. Russell and Ms. Westfall gave statements after
    5
    being Mirandized. See Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    6
    Sgt. Bennett stated that they tried to locate the petitioner several times. On the day
    he was arrested, he did not want to be interviewed.
    7
    While both Ms. Westfall and Ms. Russell testified to buying and selling heroin,
    not Fentanyl, the autopsy report performed on the victim and a drug test performed on Ms.
    Russell after her arrest confirmed that one of the drugs was Fentanyl, not heroin.
    Importantly, the counts in the petitioner’s indictment pertained to Fentanyl, not heroin.
    4
    just received a delivery of methamphetamine and heroin. She stated that because she had
    been fighting with her roommate, she and the petitioner left the house almost as soon as he
    arrived. They drove to a remote area of Nicholas County known as “Gilboa Holler,” parked
    the petitioner’s car, and got high taking drugs. Both she and the petitioner spent about
    three hours talking while smoking methamphetamine and heroin, which she provided to
    him in exchange for the use of his vehicle. Ms. Westfall stated that during this time her
    intention was to “sell what [she] needed” to Ms. Russell and the victim. She indicated that
    even though she did not recall “the nature of . . . [the] conversations that evening[]” with
    the petitioner, she assumed that her decision to stop by Ms. Russell’s house to sell drugs
    came up in their conversation. 8 Ms. Westfall again stated during cross-examination that
    she believed she and the petitioner discussed stopping by Ms. Russell’s, adding that “I
    didn’t say for sure that I was going to stop by there, but I mentioned it.” Ms. Westfall and
    the petitioner left this area with Ms. Westfall driving, and although she was going to get
    cigarettes, she turned around and drove to Ms. Russell’s house instead. The petitioner was
    “in and out” of sleep when they drove to Ms. Russell’s house.
    Ms. Westfall stated that when they arrived at Ms. Russell’s home she went
    to the door alone, leaving the petitioner in his car. She stated that she let both the victim
    and Ms. Russell know that the petitioner was in the car and asked them if it was okay if he
    8
    Ms. Westfall was referring to text messages exchanged with Ms. Russell, who
    wanted to purchase drugs from Ms. Westfall.
    5
    came into the home too. She then returned to petitioner’s car to get her scales out of her
    purse and to get the petitioner. Ms. Westfall testified that the petitioner could see her
    remove the scales from her purse and that she “believe[d] that he knew what [she] w[as]
    going to do.” The petitioner accompanied her back into Ms. Russell’s home, where Ms.
    Westfall and the victim had a discussion about what he wanted to buy “drug-wise.” Ms.
    Westfall stated that the victim wanted to try the methamphetamine, so they smoked some
    of it before he purchased drugs from her. As she stated, “I gave Teddy the drugs, and he
    gave me the money.” She further stated that the victim, Ms. Russell, and the petitioner
    were all present during this transaction. Thereafter, Ms. Westfall, Ms. Russell, and the
    victim all proceeded to get high using methamphetamine. Ms. Westfall stated that they left
    the house around 5:00 a.m., after staying there about forty-five minutes. 9
    After leaving Ms. Russell’s home, Ms. Westfall and the petitioner parked at
    a vacant house next door to Ms. Westfall’s home and took more drugs. Ms. Russell came
    by Ms. Westfall’s home around 8:30 or 9:00 in the morning, asking if Ms. Westfall and the
    petitioner wanted to go with her to a gas station. 10 They went to a gas station in Ms.
    9
    Ms. Westfall stated that she had signed a plea agreement for her testimony in the
    petitioner’s case. She agreed to plead guilty to a drug delivery causing death count and a
    drug delivery charge for which she would receive a sentence of three to fifteen years and
    one to fifteen years, respectively.
    10
    Video surveillance from the gas station confirmed that the petitioner, Ms.
    Westfall, and Ms. Russell were at a gas station in Drennan, West Virginia.
    6
    Russell’s car, after which they returned to Ms. Westfall’s home, the petitioner left in his
    vehicle, and Ms. Russell stayed another hour or so.
    Ms. Russell also testified during trial. She stated that she met the victim and
    began dating him while both were in a drug court program. She admitted that they both
    used drugs while living together, including methamphetamine and heroin. On September
    23, after she and the victim took a drug screen they went home and “smoked a little bit of
    meth[.]” Ms. Russell admitted to texting Ms. Westfall about buying methamphetamine and
    heroin from her. Although Ms. Westfall responded that she only had methamphetamine,
    Ms. Russell did not receive that text from her; nonetheless, Ms. Russell testified that Ms.
    Westfall showed up at her trailer in the petitioner’s vehicle in the early morning hours of
    September 24 to complete the drug transaction. Ms. Russell confirmed that Ms. Westfall
    was alone when she came into the residence and that the petitioner was outside asleep in
    the vehicle. Ms. Westfall asked her if the petitioner could come into her trailer. Ms.
    Westfall then returned to the vehicle to tell the petitioner he could come in and to get her
    scales from her purse, which were needed to complete the drug transaction. When the
    petitioner went into the house he sat beside the victim, who Ms. Russell stated knew the
    petitioner, and the two men began to converse.
    Thereafter, the victim, Ms. Westfall and Ms. Russell proceeded to get high.
    Ms. Russell testified that after the petitioner and Ms. Westfall left her home, the victim
    shot heroin intravenously. After doing this, the victim began to “nod out,” which she
    7
    explained meant “ready to sleep.” Later, Ms. Russell left a note for the victim, who was
    sleeping on the couch, indicating that she was going to dismantle and pick up a storage
    building. Ms. Russell testified that the victim was still breathing when she left. Ms. Russell
    then went to Ms. Westfall’s home, where both Ms. Westfall and the petitioner were present.
    After looking at the storage building, they went to a local gas station together in Ms.
    Russell’s car because she needed cigarettes, and then returned to Ms. Westfall’s home.
    Ms. Russell stated that when she returned to her trailer, she thought the victim
    was sleeping. She proceeded to do some work outside on her porch and then took a nap
    herself. After she awoke, she tried to wake up the victim, but he was unresponsive. Ms.
    Russell testified that there was a needle lying near the victim, but that he did not have any
    track marks or needle marks when he shot up. She stated that she ran to get a neighbor to
    take the victim to the hospital. When she arrived at the hospital she ran inside and told
    them the victim needed Narcan, but the hospital staff informed her that the victim was
    deceased. Ms. Russell testified that when she returned home, she flushed all of the
    remaining drugs and drug paraphernalia down the toilet, including a needle/syringe.
    Dr. Thomas Young, a forensic pathologist with the Office of the Chief
    Medical Examiner of West Virginia, testified that the victim’s cause of death was Fentanyl
    and methamphetamine intoxication. Dr. Young testified that he believed the victim inhaled
    the drugs but could not testify to that with a reasonable degree of medical certainty. The
    doctor stated if the drugs were injected there “might not necessarily be . . . [an injection
    8
    site] that . . . [he] could find.” However, Dr. Young testified that he did not notice any
    puncture marks on the victim’s arms or legs.
    Corey Smith also testified at trial. Mr. Smith was housed at Central Regional
    Jail for approximately one year while he awaited federal sentencing based on drug charges
    in connection with his importation of approximately 170,000 pounds of methamphetamine
    into West Virginia. 11 The petitioner was Mr. Smith’s cellmate. Mr. Smith testified that
    the petitioner told him that he was incarcerated for murder and discussed his charges with
    him. Significantly, Mr. Smith had never been to Summersville, West Virginia, and did not
    know any of the individuals involved in the petitioner’s version of events as related to Mr.
    Smith. The petitioner told Mr. Smith that he and Ms. Westfall went in his car to the trailer
    where Ms. Russell and the victim lived. The petitioner told Mr. Smith that Ms. Westfall,
    Ms. Russell and the victim were taking heroin and Fentanyl and that the victim “nodded
    out.” The petitioner told Mr. Smith that the victim was “supposedly ratting on somebody
    . . . [the petitioner] was close with.” According to Mr. Smith, the petitioner stated that he,
    along with Ms. Westfall and Ms. Russell left to go to a gas station. Mr. Smith testified that
    the petitioner told him that he left the gas station, returned to the trailer, and injected
    Fentanyl into the victim. Although he was awaiting sentencing on federal charges, Mr.
    Smith testified that he did not have a prior criminal history and was not promised anything
    11
    Mr. Smith testified that he pleaded guilty to “aiding and abetting, 50 grams or
    more.”
    9
    either from the State or federal prosecutor for his testimony. Mr. Smith stated that the
    reason he came forward was because he had a conversation with his mother who told him
    to “step up and do the right thing.”
    After the State rested, the petitioner moved for judgment of acquittal, arguing
    that the State failed to prove the elements of the five counts against him. The petitioner
    also renewed his pretrial motions. 12 The circuit court denied the motions.
    The defense rested without presenting any testimony or evidence. Following
    closing arguments and jury instructions, the jury began deliberating. During its
    deliberations, the jury requested to see the surveillance video from the gas station again.
    After deliberating for about four hours, the jury indicated it was deadlocked, after which
    12
    The petitioner’s pre-trial motions included a motion to dismiss the delivery
    counts. He argued that one cannot deliver drugs resulting in death without first delivering
    drugs, and a conviction for both would violate double jeopardy. The State responded that
    the Legislature intended the offenses to stack. The circuit court deferred ruling on the
    motion until after trial. The court denied the motion to dismiss post-trial.
    The petitioner also moved to exclude Mr. Smith’s testimony, arguing that the
    testimony was irrelevant to the charged conduct and was only relevant to prove
    premediated murder. He further argued that it was more prejudicial than probative and too
    unreliable to be believed. The circuit court denied the petitioner’s motion, finding that the
    testimony directly related to the charges contained in the indictment and that it contained
    inculpatory statements made by the petitioner. The petitioner renewed this motion post-
    conviction where it was again denied by the court.
    10
    the circuit court gave an Allen charge 13 over petitioner’s objection. About an hour later,
    the jury reached its verdict, finding the petitioner guilty on all five counts. 14
    By order entered January 28, 2020, the petitioner was sentenced as follows:
    one to five years of incarceration on Count 1, delivery of a controlled substance; one to
    fifteen years of incarceration on Count 2, delivery of a controlled substance; ten years of
    incarceration on Count 3, conspiracy to commit a felony; fifteen years of incarceration on
    Count 4, drug delivery resulting in death; and two to ten years of incarceration on Count 5,
    possession of Fentanyl. The circuit court ordered all sentences to run consecutively. It is
    from this order that petitioner appeals.
    II. Standard of Review
    Each of the petitioner’s three assigned errors has a different standard of
    review. Therefore, the appliable standards of review are set forth in the discussion of each
    issue.
    “The Allen charge, often called the ‘dynamite charge,’ is a supplemental
    13
    instruction given to encourage deadlocked juries to reach agreement.” Franklin D.
    Cleckley, 2 Handbook on West Virginia Criminal Procedure, at 257 (2nd ed.1993); see
    Allen v. United States, 
    164 U.S. 492
     (1896).
    The petitioner made several post-trial motions, including a motion for a new trial.
    14
    The arguments in the motion for a new trial included a renewal of his arguments that Mr.
    Smith’s testimony should have been excluded, that double jeopardy principles were
    violated, and that the evidence was insufficient to sustain his convictions. After a hearing,
    the circuit court denied the motions.
    11
    III. Discussion
    A. Double Jeopardy
    First, we address the determinative issue in this appeal: whether the circuit
    court violated the Double Jeopardy Clauses 15 of the United States and West Virginia
    Constitutions by permitting the petitioner to be convicted and sentenced for both delivery
    of a controlled substance, West Virginia Code § 60A-4-401, and delivery of a controlled
    substance causing death, West Virginia Code § 60A-4-416. “[A] double jeopardy claim
    [is] reviewed de novo.” Syl. Pt. 1, in part, State v. Sears, 
    196 W. Va. 71
    , 
    468 S.E.2d 324
    (1996); accord Mirandy v. Smith, 
    237 W. Va. 363
    , 366, 
    787 S.E.2d 634
    ,637 (2016) (“Our
    review of double jeopardy claims is de novo.”).
    The petitioner argues that because section 60A-4-416 explicitly incorporates
    a section 60A-4-401 delivery as an essential element, an individual cannot violate section
    60A-4-416 without first violating section 60A-4-401. He also argues that the “clerical
    choice” of the Legislature to create two separate statutory provisions does not demonstrate
    a legislative intent to stack the offenses. Instead, he maintains that “[i]f the legislature
    intended Sections 401 and 416 to stack, it would have said so. It did not. Without ‘a clear
    indication of contrary legislative intent,’ Section 401 is a lesser included offense,” and a
    defendant cannot be convicted and punished for both crimes.
    15
    See W. Va. Const. art. 3, §5 (“No person shall ... be twice put in jeopardy of life
    or liberty for the same offence.”); see also U.S. Const. amend. V (“[N]or shall any person
    be subject for the same offence to be twice put in jeopardy of life and limb.”).
    12
    Conversely, the State argues that consistent with the Legislature’s power to
    prescribe penalties for any particular crime, double jeopardy is not offended by the
    existence of separate, multiple offenses that are specifically intended to criminalize and
    punish drug-related conduct. 16 The State contends that the Blockburger test 17 is not
    controlling where there is a clear indication of legislative intent to create a separate and
    distinct felony subject to a separate punishment. See Syl. Pt. 8, State v. Zaccagnini, 
    172 W. Va. 491
    , 
    308 S.E.2d 131
     (1983) (adopting Blockburger test which is discussed infra in
    greater detail). In this regard, the State argues that “because the legislative intent to punish
    drug-related conduct under multiple statutes is abundantly clear from the face of the statute,
    West Virginia Code § 60A-4-416, punishing Petitioner for violating West Virginia Code §
    60A-4-401, as well as causing death while violating that provision, does not violate Double
    Jeopardy.” We disagree.
    16
    See Garrett v. United States, 
    471 U.S. 773
    , 778 (1985) (“Where the same conduct
    violates two statutory provisions, the first step in the double jeopardy analysis is to
    determine whether the Legislature – in this case Congress – intended that each violation be
    a separate offense.”); Missouri v. Hunter, 
    459 U.S. 359
    , 368-69 (1983) (“Where . . . a
    legislature specifically authorizes cumulative punishments under two statutes, regardless
    of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s
    task of statutory construction is at an end and the prosecutor may seek and the trial court
    or jury may impose cumulative punishment.”).
    17
    See Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932) (“[W]here 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.”).
    13
    This Court adopted the Blockburger test in syllabus point eight of
    Zaccagnini, holding that “[w]here 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.” 172 W. Va. at 493, 
    308 S.E.2d at 133
    , Syl. Pt. 8. Thereafter, in syllabus
    point five of State v. Gill, 
    187 W. Va. 136
    , 
    416 S.E.2d 253
     (1992), we held that “[t]he test
    of Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    , 
    76 L. Ed. 306
     (1932), is a
    rule of statutory construction. The rule is not controlling where there is a clear indication
    of contrary legislative intent.” We further held:
    A claim that double jeopardy has been violated based
    on multiple punishments imposed after a single trial is resolved
    by determining the legislative intent as to punishment.
    In ascertaining legislative intent, a court should look
    initially at the language of the involved statutes and, if
    necessary, the legislative history to determine if the legislature
    has made a clear expression of its intention to aggregate
    sentences for related crimes. If no such clear legislative intent
    can be discerned, then the court should analyze the statutes
    under the test set forth in Blockburger v. United States, 
    284 U.S. 299
    , 
    52 S. Ct. 180
    , 
    76 L. Ed. 306
     (1932), to determine
    whether each offense requires an element of proof the other
    does not. If there is an element of proof that is different, then
    the presumption is that the legislature intended to create
    separate offenses.
    Gill, 187 W. Va. at 138, 
    416 S.E.2d at 255
    , Syl. Pts. 7 and 8.
    Applying the requisite Gill analysis, we begin by examining the two relevant
    statutes. West Virginia Code § 60A-4-401 provides:
    14
    (a) Except as authorized by this act, it is unlawful for any
    person to manufacture, deliver, or possess with intent to
    manufacture or deliver, a controlled substance.
    Any person who violates this subsection with respect to:
    (i) A controlled substance classified in Schedule I or II, which
    is a narcotic drug, is guilty of a felony and, upon conviction,
    may be imprisoned in the state correctional facility for not less
    than one year nor more than fifteen years, or fined not more
    than twenty-five thousand dollars, or both;
    (ii) Any other controlled substance classified in Schedule I, II
    or III is guilty of a felony and, upon conviction, may be
    imprisoned in the state correctional facility for not less than
    one year nor more than five years, or fined not more than
    fifteen thousand dollars, or both;
    (iii) A substance classified in Schedule IV is guilty of a felony
    and, upon conviction, may be imprisoned in the state
    correctional facility for not less than one year nor more than
    three years, or fined not more than ten thousand dollars, or
    both; . . . .
    West Virginia Code § 60A-4-416 (a) provides:
    (a) Any person who knowingly and willfully delivers a
    controlled substance or counterfeit controlled substance in
    violation of the provisions of section four hundred one, article
    four of this chapter for an illicit purpose and the use, ingestion
    or consumption of the controlled substance or counterfeit
    controlled substance alone or in combination with one or more
    other controlled substances, proximately causes the death of a
    person using, ingesting or consuming the controlled substance,
    is guilty of a felony and, upon conviction thereof, shall be
    imprisoned in a state correctional facility for a determinate
    sentence of not less than three nor more than fifteen years.
    (Emphasis added).
    15
    Nothing in this statutory language evidences a clear intent on the part of the
    Legislature to aggregate the sentences for the crimes of delivery of a controlled substance
    and delivery of a controlled substance causing death. In this regard, when the Legislature
    has intended that sentences be aggregated it has expressed such intent in very explicit
    language. For example, as the Court noted in Gill, in creating new and distinct crimes and
    punishments for the offense of sexual abuse by a parent, guardian, custodian or person in
    a position of trust, West Virginia Code § 61-8D-5 (2020), the Legislature included the
    phrase “[i]n addition to any other offenses set forth in this code, the Legislature hereby
    declares a separate and distinct offense under this subsection. . . .” Id. By using this type
    of language,
    [t]he legislature has clearly and unequivocally declared its
    intention that sexual abuse involving parents, custodians, or
    guardians, W. Va. Code, 61-8D-5, is a separate and distinct
    crime from general sexual offenses, W. Va. Code, 61-8B-1, et
    seq., for purposes of punishment. Consequently, separate
    sentences for both crimes were permissible in a trial involving
    the same acts.
    Gill, 187 W. Va. at 143-44, 
    416 S.E.2d at 260-61
    . Additional examples of clear legislative
    intent to aggregate sentences or to have a separate and distinct punishment include: West
    Virginia Code § Code 60A-4-411 (pertaining to operating clandestine drug lab which is
    located in the same subsection as delivery causing death and providing that “(d) The
    offenses in subsections (a) and (b) of this section are separate and distinct offenses and
    subsection (a) of this section shall not be construed to be a lesser included offense of
    subsection (b) of this section.”); and West Virginia Code § 60A-4-409 (relating to
    transportation of controlled substances into this State which is located in the same
    16
    subsection as delivery causing death and providing that “(f) The offense established by this
    section shall be in addition to and a separate and distinct offense from any other offense
    set forth in this code.”). The foregoing is representative of the type of statutory language
    utilized by the Legislature when it intends to establish separate and distinct punishments
    for multiple crimes involving the same acts. In contrast, in the two statutes at issue in this
    case there is no clear expression of such legislative intent.
    Given the lack of any clear legislative intent to aggregate, we proceed to
    analyze the statutes “to determine whether each offense requires an element of proof the
    other does not. If there is an element of proof that is different, then the presumption is that
    the legislature intended to create separate offenses.” Gill, 187 W. Va. at 138, 
    416 S.E.2d at 255
    , Syl. Pt. 8, in part. In this regard, West Virginia Code § 60A-4-416(a), delivery of a
    controlled substances causing death, expressly makes delivery of a controlled substance,
    section 60A-4-401, an essential element of the crime:
    Any person who knowingly and willfully delivers a controlled
    substance or counterfeit controlled substance in violation of the
    provisions of section four hundred one, article four of this
    chapter for an illicit purpose and the use, ingestion or
    consumption of the controlled substance or counterfeit
    controlled substance alone or in combination with one or more
    other controlled substances, proximately causes the death of a
    person using, ingesting or consuming the controlled substance,
    W. Va. Code § 60A-4-416(a) (emphasis added). Conversely, West Virginia Code § 60A-
    4-401, delivery of a controlled substance, does not require proof of any fact beyond those
    in West Virginia Code § 60A-4-416(a), delivery of a controlled substance causing death.
    17
    Further, we held in syllabus point five of State v. Bland, 
    239 W. Va. 463
    , 
    801 S.E.2d 478
     (2017):
    “The test of determining whether a particular offense is
    a lesser included offense is that the lesser offense must be such
    that it is impossible to commit the greater offense without first
    having committed the lesser offense. An offense is not a lesser
    included offense if it requires the inclusion of an element not
    required in the greater offense.” Syl. Pt. 1, State v. Louk, 
    169 W. Va. 24
    , 
    285 S.E.2d 432
     (1981), overruled on other grounds
    by State v. Jenkins, 
    191 W. Va. 87
    , 
    443 S.E.2d 244
     (1994).
    Syllabus Point 4, State v. Wilkerson, 
    230 W. Va. 366
    , 
    738 S.E.2d 32
     (2013).
    Accord Syl. Pt. 5, State v. Wilson, 
    244 W. Va. 370
    , 
    853 S.E.2d 610
     (2020). We also held
    in the sole syllabus of State ex rel. Hall v. Strickler, 
    168 W. Va. 496
    , 
    285 S.E.2d 143
     (1981),
    that “Federal and State constitutional double jeopardy principles are violated by serial trials
    for a greater offense of felony-murder and its lesser-included offense of robbery. U. S.
    Const. amend. XIV and W. Va. Const. art. III, § 5.” See State ex rel. Games-Neely v. Silver,
    
    226 W. Va. 11
    , 14 n.1, 
    697 S.E.2d 47
    , 50 n.1 (2010) (“As we recognized in State ex rel.
    Hall v. Strickler, 
    168 W.Va. 496
    , 
    285 S.E.2d 143
     (1981), successive prosecutions for
    greater and lesser included offenses which occur in the same sequence of events are
    typically barred by double jeopardy principles.”); see also State v. Henning, 
    238 W. Va. 193
    , 199, 
    793 S.E.2d 843
    , 849 (2016) (“Critically, if we were to find that the offense of
    assault, when committed by placing another in apprehension of pain or injury, is not a
    lesser included offense of malicious assault, then an accused could potentially be charged
    with both offenses for the same act or transaction. Double jeopardy principles, however,
    would preclude convictions for both offenses.”) (emphasis added). Thus, delivery of a
    18
    controlled substance is a lesser included offense of delivery of a controlled substance
    causing death, and double jeopardy principles are implicated which prohibit being tried
    and punished for both.
    We therefore hold that double jeopardy prohibits an accused charged with
    delivery of a controlled substance causing death, West Virginia Code § 60A-4-416 (2020),
    from being separately tried or punished for both the lesser included offense of delivery of
    a controlled substance, West Virginia Code § 60A-4-401 (2014), and the greater offense
    of delivery of a controlled substance causing death. See Syl. Pt. 8, State v. Williams, 
    172 W. Va. 295
    , 
    305 S.E.2d 251
     (1983) (“Double jeopardy prohibits an accused charged with
    felony-murder, as defined by 
    W. Va. Code § 61-2-1
     (1977 Replacement Vol.), from being
    separately tried or punished for both murder and the underlying enumerated felony.”).
    Applying this holding to the instant case, the indictment in this case charged
    that the petitioner committed the offense of delivery of a controlled substance resulting in
    death by intentionally and knowingly delivering to the victim both “Fentanyl, a Schedule
    II Narcotic Controlled Substance, and Methamphetamine, a Schedule II Non-Narcotic
    Controlled Substance, which when ingested in combination with one another, was the
    proximate cause of” the victim’s death. Further, the evidence supported the indictment
    insofar as it showed that the delivery and ingestion of both controlled substances resulted
    in the victim’s death. Accordingly, to afford the petitioner the double jeopardy protections
    to which he is constitutionally entitled, we reverse the petitioner’s convictions and
    19
    sentences imposed by the circuit court for both delivery of controlled substance charges –
    Counts 1 and 2 – and remand this case for resentencing consistent with this opinion.
    B. Informant’s Testimony
    The second issue raised by the petitioner is his contention that the circuit
    court erred in failing to exclude the testimony of the petitioner’s cellmate, Mr. Smith. The
    circuit court determined that Mr. Smith’s testimony “relate[d] directly to the charges
    contained in the indictment” and that the petitioner’s statements made to Mr. Smith were
    inculpatory. We analyze evidentiary rulings under the following standard of review:
    The West Virginia Rules of Evidence . . . allocate significant
    discretion to the trial court in making evidentiary . . . rulings.
    Thus, rulings on the admission of evidence . . . are committed
    to the discretion of the trial court. Absent a few exceptions,
    this Court will review evidentiary . . . rulings of the circuit
    court under an abuse of discretion standard.
    State v. Swims, 
    212 W. Va. 263
    , 269-70, 
    569 S.E.2d 784
    , 790-91 (2002) (quoting Syl. Pt.
    9, Tudor v. Charleston Area Med. Ctr., Inc., 
    203 W. Va. 111
    , 
    506 S.E.2d 554
     (1997)).
    The petitioner argues that the testimony should have been excluded because
    “the snitch’s [Corey Smith’s] accusation of uncharged misconduct” fell under West
    Virginia Rule of Evidence 404(b), 18 and the State had no “legitimate use for the testimony.”
    18
    West Virginia Rule of Evidence 404(b) provides:
    20
    The petitioner also claims that Mr. Smith’s testimony to the effect that the petitioner
    “premeditated an intentional murder” of the victim brought “uncharged misconduct” into
    play and “constituted a fatal variance” in the indictment. Finally, petitioner argues that Mr.
    (1) Prohibited uses. – Evidence of a crime, wrong, or other act
    is not admissible to prove a person’s character in order to show
    that on a particular occasion the person acted in accordance
    with the character.
    (2) Permitted uses; notice required. – This evidence may be
    admissible for another purpose, such as proving motive,
    opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake, or lack of accident. . . .
    It is significant to note that a review of the hearing transcript in regard to the pretrial
    motions raised by the petitioner, which included his motion to exclude Mr. Smith’s
    testimony, failed to include any reference by the petitioner’s counsel to a Rule 404(b)-type
    argument to the effect that the evidence was being offered to prove the petitioner’s bad
    character and conformity therewith. Instead, what petitioner’s counsel argued was that “[i]f
    the prosecutor wants to charge my client with the other crimes, then let’s address those in
    another tribunal under a proper indictment and warrant.” The petitioner’s counsel also
    argued that “what we’re essentially doing is trying Mr. Duke on attempted murder, and
    we’re charging him on – we’re – we’re also trying him, not on the underlying drug charges
    and what he’s already facing, but these additional allegations by this man [referring to Mr.
    Smith] that really shouldn’t be given any credibility under these circumstances.”
    This Court has previously stated that a petitioner’s failure to make an objection
    before the trial court in regard to the inadmissibility of “evidence of a crime, wrong, or
    other act” to prove petitioner’s bad character and that he was acting in accordance with the
    character pursuant to Rule 404(b) precludes our review of his argument in that regard.
    State v. DeGraw, 
    196 W. Va. 261
    , 272, 
    470 S.E.2d 215
    , 226 (1996) (“[T]he Appellant’s
    failure to raise a Rule 404(b) objection before the trial court precludes us from reviewing
    his Rule 404(b) argument.”); see also State v. Hypes, 
    230 W. Va. 390
    , 394 n.9, 
    738 S.E.2d 554
    , 558 n.9 (2013) (noting the lack of petitioner’s Rule 404(b) objection before the trial
    court to preserve his argument that his voluntary statement given to police was admitted in
    violation of Rule 404(b).). Had an argument pursuant to Rule 404(b) been raised before
    the circuit court, then it should have considered the admissibility of the evidence on that
    ground, see State v. McGinnis, 
    193 W. Va. 147
    ,
    455 S.E.2d 516
     (1994), and whether a
    cautionary instruction was warranted.
    21
    Smith’s testimony was “insufficiently reliable for a court to find it truthful by a
    preponderance of the evidence.” We disagree with the petitioner and conclude that the
    circuit court did not err in admitting the testimony.
    Despite what appears from the record to be the lack of a clear challenge to
    the admissibility of Mr. Smith’s testimony based on Rule 404(b), see supra note 19, we
    agree with the State’s position that Mr. Smith’s testimony is intrinsic evidence of the crime
    with which the petitioner was charged. See State v. LaRock, 
    196 W. Va. 294
    , 312-13, 
    470 S.E.2d 613
    , 631-32 (1996) (finding “the evidence is not unrelated but integrally is
    connected to the criminal activity charged in the indictment”). In LaRock, the Court stated
    that
    [i]n determining whether the admissibility of evidence of
    “other bad acts” is governed by Rule 404(b), we first must
    determine if the evidence is “intrinsic” or “extrinsic.” See
    United States v. Williams, 
    900 F.2d 823
    , 825 (5th Cir.1990):
    “‘Other act’ evidence is ‘intrinsic’ when the evidence of the
    other act and the evidence of the crime charged are
    ‘inextricably intertwined’ or both acts are part of a ‘single
    criminal episode’ or the other acts were ‘necessary
    preliminaries’ to the crime charged.” (Citations omitted). If
    the proffer fits into the “intrinsic” category, evidence of other
    crimes should not be suppressed when those facts come in as
    res gestae—as part and parcel of the proof charged in the
    indictment. See United States v. Masters, 
    622 F.2d 83
    , 86 (4th
    Cir. 1980) (stating evidence is admissible when it provides the
    context of the crime, “is necessary to a ‘full presentation’ of
    the case, or is . . . appropriate in order ‘to complete the story of
    the crime on trial by proving its immediate context or the “res
    gestae”’”). (Citations omitted).
    22
    LaRock, 196 W. Va. at 312 n.29, 470 S.E.2d at 631 n.29. Here, Mr. Smith’s testimony was
    “inextricably intertwined” with the evidence of the crimes charged and was therefore
    properly admitted at trial. See id. His testimony revealed that while the petitioner was Mr.
    Smith’s cellmate the petitioner discussed his charges with Mr. Smith. The petitioner told
    Mr. Smith that both he and Ms. Westfall, travelling in the petitioner’s car, went to Ms.
    Russell’s and the victim’s trailer on the night the victim died. Mr. Smith also confirmed
    that the petitioner knew that Ms. Russell, Ms. Westfall, and the victim were doing drugs,
    including heroin and Fentanyl. Mr. Smith’s testimony clearly supported the petitioner’s
    knowing participation, or at least active assistance, in the drug delivery that caused the
    victim’s death. The testimony further contradicted the petitioner’s defense that he was
    merely a passive participant in a delivery of drugs that the victim ingested, thereby resulting
    in his death.
    Next, we address, and readily resolve, the petitioner’s assertion that a
    “variance” to the indictment occurred as a result of Mr. Smith’s testimony. This Court
    previously held that
    [i]f an indictment alleges that an offense was done in a
    particular way, the proof must support such charge or there will
    be a fatal variance. However, if such averment can be omitted
    without affecting the charge in the indictment against the
    accused, such allegation may be considered and rejected as
    surplusage if not material. Syllabus point 8, State v. Crowder,
    
    146 W.Va. 810
    , 
    123 S.E.2d 42
     (1961).
    Syl. Pt. 2, State v. Scarberry, 
    187 W. Va. 151
    , 
    418 S.E.2d 361
     (1992). Further, “[t]he
    variance between the indictment and the proof is considered material only where the
    23
    variance misleads the defendant in making his defense and exposes him to the danger of
    being put in jeopardy again for the same offense.” Id. at 255-56, 
    418 S.E.2d at 365-66
    (internal quotation and citation omitted).
    Here, there is no fatal variance between the indictment and the evidence
    presented at trial. The petitioner was charged with delivery of a controlled substance which
    resulted in, or was the proximate cause of, the victim’s death. The petitioner claims that
    Mr. Smith’s testimony supported only a first-degree murder charge, and because he was
    not indicted on first-degree murder, the testimony was inadmissible. This argument
    ignores the portions of Mr. Smith’s testimony corroborating that the petitioner was with
    Ms. Westfall, Ms. Russell and the victim on the night of the victim’s death, and that by
    allowing his vehicle to be used in Ms. Westfall’s delivery of drugs to the victim, the
    petitioner was an active participant in the delivery of drugs that caused the victim’s death.19
    19
    The petitioner’s argument that the circuit court should have excluded Mr. Smith’s
    testimony because it was “incredible” is without merit. Mr. Smith’s testimony regarding
    the various actors in the crime could only have been known to him if the petitioner had
    indeed relayed the information to him. Mr. Smith testified that he was not from
    Summersville, West Virginia, where the events occurred, and had no connection to any of
    the actors other than the petitioner. He further testified that he did not receive any promises
    from the prosecutor or federal authorities in regard to his federal charges as a result of his
    testimony. Consequently, the circuit court did not error in admitting the testimony. Further,
    the credibility determinations made during trial are left to the sole purview of the jury. See
    Syl. Pt. 3, in part, State v. Guthrie, 
    194 W. Va. 657
    , 
    461 S.E.2d 163
     (1995) (“Credibility
    determinations are for a jury and not an appellate court.”).
    24
    C. Sufficiency of the Evidence
    The third issue is a challenge to the sufficiency of the evidence to show that
    the petitioner conspired “or acted in concert with” Ms. Westfall, the drug dealer. 20 This
    Court examines issues pertaining to the sufficiency of the evidence challenges under the
    following standards of review:
    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.
    ....
    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.
    20
    The petitioner appears to conflate sufficiency of the evidence to support
    conspiracy to commit a felony, which was the delivery of a controlled substance, with
    sufficiency of the evidence to show that he acted in concert with Ms. Westfall to carry out
    the remaining criminal acts with which he was charged. For discussion purposes, we
    separate the two.
    25
    Syl. Pt. 1 and Syl. Pt. 3, in part, State v. Guthrie, 
    194 W. Va. 657
    , 
    461 S.E.2d 163
     (1995).
    In regard to conspiracy, the petitioner contends that “[t]he State repeatedly
    asserted that without Petitioner’s car, the dealer could not have delivered drugs. But
    without Petitioner’s agreement or even complicity, he is a bystander—not a conspirator.”
    He argues that the State failed to show an agreement between him and Ms. Westfall to sell
    drugs.        He also claims the evidence failed to show a pre-arranged plan for him to
    accompany Ms. Westfall to the victim’s home and that his visit to the home was
    “unconnected with any plan to sell drugs.” The petitioner contends he was “unconscious
    and nearly himself a victim” due to a “non-lethal Fentanyl overdose” when Ms. Westfall
    decided to sell the drugs to the victim.
    In discussing conspiracy under West Virginia Code § 60A-4-414(b) 21 this
    Court has held that the statute requires proof of “overt acts” that are in furtherance of the
    21
    West Virginia Code § 60A-4-414(b) (2020) provides:
    (b) Notwithstanding the provisions of subsection (a) of
    this section, any person who willfully conspires with one or
    more persons to manufacture, deliver or possess with intent to
    manufacture or deliver one kilogram or more of heroin, five
    kilograms or more of cocaine or cocaine base, one hundred
    grams or more of phencyclidine, ten grams or more of lysergic
    acid diethylamide, or fifty grams or more of methamphetamine
    or five hundred grams of a substance or material containing a
    measurable amount of methamphetamine, if one or more of
    such persons does any act to effect the object of the conspiracy,
    26
    conspiracy. Syl. Pt. 5, in part, State v. Legg, 
    243 W. Va. 372
    , 
    844 S.E.2d 143
     (2020). 22 In
    reaching this decision the Court relied upon its earlier decision in State v. Less, 
    170 W. Va. 259
    , 
    294 S.E.2d 62
     (1981), involving the general conspiracy statute. See 
    W. Va. Code § 61-10-31
    (2020); see also Legg, 243 W. Va. at 379, 844 S.E.2d at 379. In Less, we held
    that for general conspiracy the State must prove that a defendant “agreed with others to
    is guilty of a felony and, upon conviction thereof, shall be
    imprisoned in a state correctional facility for a determinate
    sentence of not less than two nor more than thirty years.
    We note that the petitioner was indicted for violating West Virginia Code § 60A-4-414(a)
    (2020), which provides:
    (a) Any person who willfully conspires with one or
    more persons to commit a felony violation of section four
    hundred one [§ 60A-4-401] of this article, if one or more of
    such persons does any act to effect the object of the conspiracy,
    is guilty of a felony and, upon conviction thereof, shall be
    imprisoned in a state correctional facility for a determinate
    sentence of not less than two nor more than ten years:
    Provided, That the provisions of this subsection are
    inapplicable to felony violations of section four hundred one of
    this article prohibiting the manufacture, delivery or possession
    with intent to manufacture or deliver marijuana.
    22
    The entirety of syllabus point five of Legg reads:
    “For purposes of a crime under W. Va. Code § 60A-4-
    414(b), W. Va. Code § 60A-4-414(f) requires that overt acts
    have to be in furtherance of the conspiracy before the trier of
    fact can attribute to the defendant ‘all of the controlled
    substances manufactured, delivered or possessed with intent to
    deliver or manufacture by other participants or members of the
    conspiracy.’”
    243 W. Va. at 373, 844 S.E.2d at 144.
    27
    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.” 170 W. Va. at 261, 294 S.E.2d at 63,
    Syl. Pt. 4, in part (emphasis added).
    Applying the foregoing law to the facts of this case, the evidence showed that
    the petitioner was a knowing participant in the drug deal that killed the victim. The
    evidence demonstrated that the petitioner knew Ms. Westfall was a drug dealer because
    she had given him drugs more than once in exchange for him allowing her to use his
    vehicle. Further, Ms. Westfall testified that she told the petitioner about the pending drug
    exchange with Ms. Russell. Moreover, the petitioner overlooks the testimony of both Ms.
    Westfall and Ms. Russell in regard to the overt acts of the petitioner providing his vehicle
    for use in the drug transaction and accompanying Ms. Westfall into Ms. Russell’s trailer
    after Ms. Westfall had retrieved her scales from the petitioner’s car. Once inside the trailer,
    the petitioner was present when Ms. Russell weighed the drugs and sold them to the victim.
    The petitioner offered no evidence that either Ms. Westfall or Ms. Russell was lying, nor
    did he present any evidence to show that he was unaware of the impending drug deal when
    he allowed Ms. Westfall to use his car and accompanied her to the delivery. Accordingly,
    his challenge that there was insufficient evidence to support this conviction for conspiracy
    is unavailing. See Guthrie, 194 W. Va. at 663, 
    461 S.E.2d at 169
    , Syl. Pt.3, in part.
    Second, in regard to the concerted action principle relied upon by the State
    to prove its case against the petitioner, he argues that he was unconscious from a “non-
    28
    lethal Fentanyl overdose” when Ms. Westfall decided to drive to Ms. Russell’s to sell the
    drugs and did not awaken until after they arrived at the trailer. Further, he argues that his
    visit was unconnected with any plan to sell drugs, because “[h]e arrived spontaneously to
    socialize and did not even own a cell phone with which to plan any deal.” Thus, the
    petitioner contends that he “did nothing that meaningfully and intentionally ‘contribute[d]
    to the criminal act.’” See Syl. Pt. 7, State v. Foster, 
    221 W. Va. 629
    , 
    656 S.E.2d 74
     (2007).
    In Foster, we held:
    “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, along with other circumstances,
    such as the defendant’s association with or relation to the
    perpetrator and his conduct before and after the commission of
    the crime.” Syllabus Point 10, State v. Fortner, 
    182 W.Va. 345
    ,
    
    387 S.E.2d 812
     (1989).
    “Under the concerted action principle, a defendant who
    is present at the scene of a crime and, by acting with another,
    contributes to the criminal act, is criminally liable for such
    offense as if he were the sole perpetrator.” Syllabus Point 11,
    State v. Fortner, 
    182 W.Va. 345
    , 
    387 S.E.2d 812
     (1989).
    221 W. Va. at 632-33, 
    656 S.E.2d 77
    -78, Syl. Pts. 6 &7.
    The evidence showed that the petitioner willingly contributed to the criminal
    acts charged in this case. See 
    id.
     He allowed a known drug dealer, Ms. Westfall, to use
    his car in exchange for drugs. He then accompanied Ms. Westfall to Ms. Russell’s trailer
    in the car that he provided. When Ms. Westfall returned to the petitioner’s car to retrieve
    her scales in order to finalize the drug sale, the petitioner willingly accompanied her back
    29
    into the trailer and was present at the time the drug deal occurred. The evidence established
    that the petitioner was much more that the unwitting participant that he now claims he was.
    Accordingly, we find that the evidence was sufficient to support the jury’s verdict on all
    counts.
    IV. Conclusion
    For the foregoing reasons, the circuit court’s order is affirmed, in part; and
    reversed, in part, in regard to the convictions and sentences imposed on the two delivery
    of controlled substance counts and remanded for resentencing consistent with this opinion.
    Affirmed, in part;
    Reversed, in part, and remanded with directions.
    30