Background
Police stopped a vehicle carrying Jacquain Crawford after a Walmart employee reported suspected shoplifting. Officers found beneath Crawford’s passenger seat a fanny pack he had worn inside the store. It contained a loaded firearm, several baggies of suspected cocaine, and pills suspected to contain a controlled substance.
A jury convicted Crawford of possession with intent to deliver cocaine and fentanyl, use or presentation of a firearm during a felony, possession of a firearm by a prohibited person, and carrying a concealed firearm as a prohibited person. At trial, the State introduced the drug-analysis report through Blake Kinder, who reviewed the data but neither performed nor observed the testing conducted by former laboratory scientist Tiffany Neu. The circuit court denied Crawford’s post-verdict request for acquittal or a new trial.
The Court’s Holding
The Supreme Court of Appeals held that the evidence was insufficient to support Crawford’s conviction for using or presenting a firearm during a felony. Adopting an active-employment standard, the court held that the “use” prong of West Virginia Code § 61-7-15a requires proof that the defendant actively employed the firearm during the felony. The hidden gun’s mere possession or availability for protection was insufficient because Crawford did not brandish, display, reference, deploy, or otherwise actively employ it. The court reversed that conviction, and double-jeopardy principles bar retrial on the charge.
The court also held that admitting Neu’s forensic report through Kinder violated Crawford’s confrontation rights. A testimonial forensic report prepared to prove a fact at trial cannot be admitted through an expert who neither performed nor observed the reported testing, unless the analyst is unavailable and the defendant previously had an opportunity to cross-examine that analyst. Because the report was the only evidence identifying the substances as cocaine and fentanyl, the court vacated those two possession-with-intent convictions and remanded them for a new trial. Crawford’s two prohibited-person firearm convictions remain unaffected.
Key Takeaways
- “Use” of a firearm under West Virginia Code § 61-7-15a requires active employment; mere possession near drugs does not suffice.
- A peer reviewer cannot replace the analyst who performed forensic testing when the State introduces the analyst’s testimonial report for its truth.
- Crawford cannot be retried for firearm use, but he may be retried for possession with intent to deliver cocaine and fentanyl because those convictions were vacated for trial error.
Why It Matters
The decision narrows the proof required for West Virginia’s felony-firearm-use offense by distinguishing active employment from possession for protection. Prosecutors must show conduct such as displaying, brandishing, firing, striking with, bartering, or referring to a firearm in a way calculated to affect the predicate felony.
The ruling also reinforces that laboratory staffing changes and peer review do not eliminate a defendant’s right to confront the analyst whose testing and conclusions establish the identity of alleged controlled substances. A substitute expert’s agreement with an absent analyst cannot cure that constitutional problem.