                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                         May 24, 2013
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.) No. 12-0338 (Putnam County 11-F-84)                                         OF WEST VIRGINIA


Tracy L. Wright,
Defendant Below, Petitioner

                                 MEMORANDUM DECISION

        Petitioner Tracy L. Wright, by counsel David Moye, appeals the “Sentencing Order”
entered by the Circuit Court of Putnam County on January 19, 2012, following her convictions
for murder of a child by a parent by refusal or failure to supply necessities and child neglect
resulting in death by a parent, guardian, or custodian. The State of West Virginia, by counsel
Kristina Raynes, has filed its response.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       A Putnam County Grand Jury indicted petitioner on one count of murder of a child by a
parent by refusal or failure to supply necessities and one count of child neglect resulting in death
by a parent, guardian, or custodian. Following a jury trial, petitioner was found guilty on both
counts. Petitioner was sentenced in January of 2012 to a term of incarceration of life with mercy
for murder of a child by a parent by refusal or failure to supply necessities and a term of
incarceration of three to fifteen years for child neglect resulting in death by a parent, guardian, or
custodian.

        On appeal, petitioner argues that the circuit court erred by not advising the jury that a
guilty verdict could only be returned on one of the counts. Petitioner argues the fact that one
count requires intent to cause death and the second count requires neglect causing death creates a
contradiction. Petitioner argues the circuit court should have instructed the jury that if they
believed there was intent to cause the death of her daughter, then there could be no neglect.
Petitioner argues when it is clear that an erroneous instruction was given and it cannot be
declared beyond a reasonable doubt that such instruction in no way contributed to the conviction
or outcome of the trial, the conviction must be reversed and a new trial granted. Petitioner also
argues that plain error exists because the circuit court failed to instruct the jury that they had to
choose between the counts in the indictment even though counsel did not object at trial.



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        The State argues that petitioner failed to properly object to the circuit court’s jury
instruction that the jury could find petitioner guilty on both counts pursuant to Rule 30 of the
West Virginia Rules of Criminal Procedure and State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613
(1996). The State argues that pursuant to State v. Miller, 194, W.Va. 3, 459 S.E.2d 114 (1995),
petitioner’s counsel waived her right by agreeing to the jury instruction and by failing to
objection to the verdict form. The State argues that pursuant to State v. Day, 225 W.Va. 794,
696 S.E.2d 310 (2010), petitioner’s counsel had multiple opportunities to challenge the jury
instruction, submitted his own language for the charge on the count for the neglect charge, and
thereby deliberately and through participation, waived this right.

        Based on petitioner’s failure to object in the trial court, this Court must review
petitioner’s argument under the “plain error” doctrine. This Court has stated:

       Under the “plain error” doctrine, “waiver” of error must be distinguished from
       “forfeiture” of a right. A deviation from a rule of law is error unless there is a
       waiver. When there has been a knowing and intentional relinquishment or
       abandonment of a known right, there is no error and the inquiry as to the effect of
       a deviation from the rule of law need not be determined. By contrast, mere
       forfeiture of a right-the failure to make timely assertion of the right-does not
       extinguish the error. In such a circumstance, it is necessary to continue the inquiry
       and to determine whether the error is “plain.” To be “plain,” the error must be
       “clear” or “obvious.”

Syl. Pt. 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The Court finds that petitioner’s
first assignment of error is without merit. The record reflects that both parties submitted
proposed jury instructions and petitioner’s counsel participated in finalizing the jury charge with
the circuit court and the State. The record also reflects that petitioner’s counsel knowingly and
intentionally agreed to the proposed charge and waived any objection to the verdict form when
petitioner’s counsel stated that there were “no objections to the verdict form” and accepted the
proposed charge.

        Next, petitioner argues that the prosecuting attorney committed prejudicial error during
closing arguments by stating “there is evidence to support a guilty verdict on both. You do not
have to choose. You don’t have to pick one or the other. There has been evidence to prove to you
beyond a reasonable doubt that she is guilty on both of those charges.” Specifically, petitioner
argues that the jury was misled by the statement, “You don’t have to choose.” The State argues
that this argument is dependent on the first assignment of error. The State argues since petitioner
waived her right to object, the State argued the law exactly the way that the trial court instructed
it. The Court declines to address petitioner’s second assignment of error because this Court
determined above that petitioner waived her objection to the jury instructions. Logically,
petitioner cannot argue prejudicial error when the State argued the law as agreed to by
petitioner’s counsel and has failed to assert the error constituted plain error.

       For the foregoing reasons, we affirm.




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                                       Affirmed.

ISSUED: May 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:

Justice Menis E. Ketchum




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