                              STATE OF WEST VIRGINIA 

                            SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                     FILED
                                                                           November 16, 2018
vs) No. 17-0754 (Mercer County 16-F-20)                                      EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Sonja Bone, 

Defendant Below, Petitioner 


and

State of West Virginia,
Plaintiff Below, Respondent

vs) No. 17-0801 (Mercer County 16-F-21)

Monty Bone, 

Defendant Below, Petitioner 



                               MEMORANDUM DECISION
        Petitioner Sonja Bone, by counsel John G. Byrd, and Petitioner Monty Bone, by counsel
David B. Kelley, appeal orders entered in the Circuit Court of Mercer County on July 24, 2017,
that denied their respective motions for a new trial following their convictions by a jury of abuse
of an incapacitated adult causing bodily injury, neglect of an incapacitated adult causing bodily
injury, and conspiracy.1 The State of West Virginia, by counsel Robert L. Hogan, filed a
response in support of the circuit court’s orders, a supplemental appendix, and a cross-
assignment of error on the issue of sentencing. Petitioners each filed a reply.

       This 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 affirming the circuit court’s order and remanding this matter
for modification of petitioners’ sentences is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       On July 11, 2015, eighty-seven-year-old Nancy Bone (“the victim”), Petitioner Monty
Bone’s mother and Petitioner Sonja Bone’s mother-in-law, was taken by ambulance to Bluefield
Regional Medical Center. According to the notes of EMT William K. Croye, Jr., the victim was

       1
           Petitioners’ appeals were consolidated by order entered on November 14, 2017.
                                                 1
found in her bed; was very dirty; had multiple bruises in various stages of healing; and had many
skin tears, some with pus coming out of them, and bandages on her arms. Some of the bandages
were old and needed to be changed. Mr. Croye’s notes also indicated that the victim’s bedroom
was dirty and very cluttered and that the entire house was also very cluttered, hot, and smelled of
animal urine. The victim was suffering from an altered level of consciousness and was unable to
answer questions or communicate. At trial, Mr. Croye testified that, “in 16 years, it was one of
those situations that I’ll never forget, just the condition that she was in.”

        The victim was admitted to the hospital with acute renal failure, hypernatremia,
dehydration, failure to thrive, and shingles. One of the victim’s nurses, Sarah Maynard,
suspected that the victim had been abused and took photographs of her. The photographs
depicted multiple bruises, skin tears, scabs, and pressure wounds on numerous parts of her body.
Nurse Maynard testified that she had never before seen a patient in such poor condition. In a
nursing note, Nurse Maynard wrote that, when asked, the victim knew her name, birth date, and
address, “but was not oriented to day/year or surroundings, location.” When asked if she had
been abused at home, she said “yes” and identified her abusers as “[V]ernon and [M]onty.”
(According to the State, petitioners’ son, Brendan, stayed with Monty in the victim’s home;
Nurse Maynard agreed that because the victim had difficulty speaking, she could have been
trying to say “Brendan” rather than “Vernon.”). The victim told Nurse Maynard that “‘they kick
me, punch me, stomp on my feet[,]’” and that “‘[M]onty throws me down on the bed really
hard.’” According to Nurse Maynard’s notes, the victim also stated that “her family ‘hid her
heater in the closet because they didn’t want to pay the bill,’” that they did not turn or bathe her,
and that she only “sometimes” had hot meals. The victim thanked Nurse Maynard for finding her
and stated that she did not want go back to her house.

         Similarly, Diane McQuillen, D.O., a physician who took part in the victim’s treatment
and care at the hospital, testified that she would never forget the victim’s condition when she was
brought in and that she believed the victim had suffered “serious bodily injury.” Dr. McQuillen
testified that the victim had stage three and four pressure ulcers, including infection with full
thickness loss of skin and subcutaneous tissue (i.e., down to the bone) and that these injuries
could not have developed in just forty-eight hours as petitioners claimed. The evidence revealed
that the victim had been seen by a physician only one time in the preceding eighteen months and,
in Dr. McQuillen’s opinion, this was inadequate. She further opined that the bruises on the
victim’s breasts were consistent with being tweaked, twisted, or pinched, and inconsistent with
attempts by caregivers to lift her from behind. Bruises to the victim’s face were, in Dr.
McQuillen’s view, inconsistent with a fall. Dr. McQuillen testified that she believed the victim
had been neglected.2

        Detective Kenneth Adams of the Bluefield Police Department, who investigated this
matter, obtained statements from each petitioner. They admitted that they began caring for the
the victim after her husband became too ill to care for her3 in December 2013, and then, after he
died in January of 2014, they became her primary caregivers. Petitioners stated that the victim


       2
           The victim died on August 28, 2015.
       3
           The victim had a stroke in the late 1990s.
                                                  2

often fell but implied that her condition deteriorated shortly after she was hospitalized. Petitioner
Sonja Bone gave three photographs of the victim to Detective Adams. Two photographs showed
the victim lying on the floor near her bed, under her potty chair. The other photograph showed
her sitting in a chair slumped over a small food tray or table.

        Adult Protective Services worker Rebecca Jennings prepared a contact summary
following a conversation with Petitioner Monty Bone on July 22, 2015. According to the
summary, Monty called for an ambulance on July 14, because the victim had developed a rash on
her chest and had not been eating regularly. He advised Ms. Jennings that he was unaware that
the victim had shingles. He further advised that he cared for the victim at her home because
neither he nor the victim wanted her to be placed in a nursing home; that his children assisted
him with caring for the victim; that he helped her with toileting, wheel chair transfer, and meals;
that she stayed in the wheel chair while he is away at work and then he helped to transfer her to
her bed when he goes home; and that Petitioner Sonja Bone and petitioners’ daughter helped
with the victim’s hygiene.

        Petitioners were jointly indicted in the Circuit Court of Mercer County in February of
2016 on one count of abuse of an incapacitated adult causing serious bodily injury; four counts
of neglect of an incapacitated adult causing serious bodily injury; one count of malicious assault;
and one count of conspiracy to abuse and/or neglect an incapacitated adult. Petitioners were
jointly tried.

        Petitioner Monty Bone was convicted of one count of the lesser included offense of abuse
of an incapacitated adult causing bodily injury; three counts of the lesser included offense of
neglect of an incapacitated adult causing bodily injury; and one count of conspiracy. Petitioner
Sonja Bone was convicted of one count of the lesser included offense of abuse of an
incapacitated adult causing bodily injury; two counts of the lesser included offense of neglect of
an incapacitated adult causing bodily injury; and one count of conspiracy. Petitioners were
acquitted of the remaining charges.

        Petitioners filed motions for a new trial, which were denied in orders entered on July 24,
2017. Also in the July 24, 2017, orders, the circuit court sentenced Petitioner Monty Bone to one
to five years of incarceration for abuse of an incapacitated adult causing bodily injury (Count 1);
one to five years for neglect of an incapacitated adult causing bodily injury (Counts 2, 3, and 5);
and one year for conspiracy (Count 7). The sentences for Counts 1 and 2 were ordered to run
concurrently with one another; the sentences for Counts 3 and 5 were ordered to run concurrently
with one another and consecutively with Counts 1 and 2; and the sentence for Count 7 was
ordered to run concurrently with Count 5. The circuit court sentenced Petitioner Sonja Bone to
one to five years of incarceration for abuse of an incapacitated adult causing bodily injury (Count
1); one to five years for neglect of an incapacitated adult causing bodily injury (Counts 3 and 5);
and one year for conspiracy (Count 7). The sentences for Counts 1 and 3 were ordered to run
concurrently with one another while Counts 5 and 7 were ordered to run concurrently with one
another and consecutively with Counts 1 and 3. Petitioner Sonja Bone’s sentences were
suspended and she was placed on probation for a period of three years. This appeal followed.




                                                 3

       This Court reviews an order denying a motion for a new trial under the following
standard:

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings of the
       circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).

        We first address petitioners’ argument that the circuit court erred in allowing the State to
introduce evidence that, after the victim added Petitioner Monty Bone to her bank account as a
joint account holder, he made numerous personal expenditures that did not benefit the victim.
The State introduced evidence that Monty purchased a travel trailer for $5,600, two tractors
totaling $15,200, and spent various amounts at retail and eating establishments. The evidence
further revealed that the amount of money expended from the bank account totaled in the tens of
thousands of dollars. At a pre-trial hearing, the State argued that it intended to offer this evidence
to show “motive and that [petitioners] had control and care and custody of [the victim]. They
controlled all her finances.” The State further argued that this evidence was intended to show that
petitioners had the financial means to pay for items and services that the victim needed but was
not provided, including items that could have reduced or prevented her injuries and caregivers
who could have provided home health services or taken her to the doctor. In ruling that the bank
records would be admissible at trial, the circuit court determined that the evidence

       goes to the element of incapacitation, the fact that this person did not have control
       of her finances, goes in part to the element of the State [sic] has to prove that she
       was incapacitated at the time these injuries were allegedly inflicted by the
       Defendants. And, I think it could also go to motive.

        On appeal, petitioners contend that Petitioner Monty Bone did not owe a fiduciary duty to
the victim; that he was a joint holder of the bank account and, as such, was lawfully entitled to
spend the money as he saw fit, see W.Va. Code § 31A-4-33; and that evidence of the bank
records and Monty’s personal expenditures was not relevant to prove any of the elements of the
crimes for which petitioners were being tried. See W.Va. R. Evid. 401.4 Furthermore, petitioners
argue, even if this evidence were relevant, it should have nonetheless been excluded because its
probative value was substantially outweighed by the danger of unfair prejudice. See W.Va. R.
Evid. 403. We find no error.

       This Court has made clear that



       4
           Under West Virginia Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be without the evidence; and (b) the
fact is of consequence in determining the action.”
                                                  4

       “[t]he West Virginia Rules of Evidence . . . allocate significant discretion to the
       trial court in making evidentiary . . . rulings. Thus, rulings on the admissibility 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.”

Syl. Pt. 1, in part, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995). See also
State v. LaRock, 196 W. Va. 294, 306, 470 S.E.2d 613, 625 (1996) (“The decision to admit or
reject evidence is committed to the sound discretion of a trial court, and the court’s
determinations are reviewable only for an abuse of discretion.”). We have explained that “[o]nly
rarely and in extraordinary circumstances will we, from the vista of a cold appellate record,
reverse a circuit court’s on-the-spot judgment concerning the relative weighing of probative
value and unfair effect[,]” and that, “[i]n general, an abuse of discretion occurs when a material
factor deserving significant weight is ignored, when an improper factor is relied upon, or when
all proper and no improper factors are assessed but the circuit court makes a serious mistake in
weighing them.” Gentry v. Mangum, 195 W. Va. 512, 520 n.6, 466 S.E.2d 171, 179 n.6 (1995).

        Petitioners were charged with abusing and neglecting an incapacitated adult causing
serious bodily injury and conspiracy. The victim had not seen a doctor during the eighteen
months preceding her hospital admission. She was found dirty in a hot, cluttered house, with
numerous pressure ulcers, skin tears and bandages that were old and needed changing.
Petitioners did not engage a caregiver or home health services to assist in caring for the victim or
to otherwise ensure her safety in the home. Evidence of the bank records was intended to show
that there were sufficient funds available but not spent for such purposes. According to the bank
records, petitioners instead expended tens of thousands of dollars of the money for their own
personal use and benefit while the victim’s needs were neglected. Given all of this evidence, we
find that the circuit court did not abuse its discretion in admitting evidence of the victim’s bank
records at trial.

        Next, petitioners argue that the circuit court erred in allowing gruesome photographs
depicting multiple bruises, skin tears, scabs, and pressure wounds on the victim’s body to be
admitted into evidence at trial. Petitioner Sonja Bone concedes that some of the photographs
were admissible “because they go directly to the elements of the indicted offenses.” However,
she argues that some are duplicative and, thus, cumulative. As a result, she argues, the admission
of the photographs was unfairly prejudicial to the defense. Petitioner Monty Bone argues that the
photographs were “revolting,” “like a horror picture,” and “prejudicial” because, in some
instances, they were discolored and “made the wounds look more gruesome” than they actually
were.

        “The admissibility of photographs over a gruesome objection must be determined on a
case-by-case basis pursuant to Rules 401 through 403 of the West Virginia Rules of Evidence.”
Syl. Pt. 8, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). As we further explained in
Derr,

              [a]lthough Rules 401 and 402 of the West Virginia Rules of Evidence
       strongly encourage the admission of as much evidence as possible, Rule 403 of

                                                 5

       the West Virginia Rules of Evidence restricts this liberal policy by requiring a
       balancing of interests to determine whether logically relevant is legally relevant
       evidence. Specifically, Rule 403 provides that although relevant, evidence may
       nevertheless be excluded when the danger of unfair prejudice, confusion, or
       undue delay is disproportionate to the value of the evidence.

               Rule 401 of the West Virginia Rules of Evidence requires the trial court to
       determine the relevancy of the exhibit on the basis of whether the photograph is
       probative as to a fact of consequence in the case. The trial court then must
       consider whether the probative value of the exhibit is substantially outweighed by
       the counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. As
       to the balancing under Rule 403, the trial court enjoys broad discretion. The Rule
       403 balancing test is essentially a matter of trial conduct, and the trial court’s
       discretion will not be overturned absent a showing of clear abuse.

192 W. Va. at 168, 451 S.E.2d at 734, syl. pts. 9 and 10.5

        We find no error. We first note that petitioners do not challenge the admissibility of all
twenty-two of the photographs offered by the State. Nonetheless, they fail to specifically identify
which photographs they believe to be cumulative and, thus, unfairly prejudicial, or so discolored
as to be misrepresentative of the victim’s injuries. The photographs of the victim’s injuries were
taken at the hospital by the nursing staff shortly after the victim was admitted. At a pre-trial
hearing, the circuit court determined that the State was required to prove “serious bodily injury”
and concluded that the photographs were probative on that issue and that they “document[ed] the
injuries that [the victim] had. . . . it’s a material issue for the State.” We agree that, given the
gravity of the crimes charged, the circuit court did not abuse its discretion by allowing the jury to
view the photographs depicting the severity of the victim’s injuries.

        Petitioners next argue that the circuit court erred in admitting statements the victim made
to hospital staff because they were hearsay that did not satisfy any of the basic exceptions to the
hearsay rule. Nurse Maynard and Dr. McQuillen testified that the victim stated that petitioners
kicked and punched her, stomped on her feet, and threw her down on the bed. The victim also
told them that petitioners hid her heater, failed to turn or bathe her, and only sometimes provided
her with a hot meal. Petitioners argue that the victim’s statements were offered to prove the truth



       5
          Petitioner Monty Bone’s argument that the State was required to show that the
gruesome photographs were “of essential evidentiary value to its case[,]” as required by State v.
Rowe, 163 W. Va. 593, 596, 259 S.E.2d 26, 28 (1979), is incorrect because Rowe is no longer
good law. Rowe was decided six years before the adoption of the West Virginia Rules of
Evidence and was overruled in syllabus point six of Derr, which held that “[w]hatever the
wisdom and utility of State v. Rowe, 163 W.Va. 593, 259 S.E.2d 26 (1979), and its progeny, it is
clear that the Rowe balancing test did not survive the adoption of the West Virginia Rules of
Evidence. Therefore, State v. Rowe, supra, is expressly overruled because it is manifestly
incompatible with Rule 403 of the West Virginia Rules of Evidence.” 192 W.Va. at 168, 451
S.E.2d at 734.
                                                 6

of the matters asserted, see W.Va.R.Evid. 801,6 and were not admissible as statements made for
medical diagnosis or treatment, as set forth in Rule 803(4).

        Rule 803(4) excludes from the hearsay rule a statement that “(A) is made for—and is
reasonably pertinent to—medical diagnosis or treatment; and (B) describes medical history; past
or present symptoms or sensations; their inception; or their general cause.” See also Syl. Pt. 4,
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990). As we held in Edward
Charles L.,

       [t]he two-part test set for admitting hearsay statements pursuant to W.Va.R.Evid.
       803(4) is (1) the declarant’s motive in making the statements must be consistent
       with the purposes of promoting treatment, and (2) the content of the statement
       must be such as is reasonably relied upon by a physician in treatment or
       diagnosis.

183 W. Va. at 644, 398 S.E.2d at 126, at syl. pt. 5. Petitioners contend that the Rule 803(4)
exception is not satisfied because the evidence showed that the victim was delirious at the time
she spoke with medical personnel and, as a result, she was unable to formulate a motive that was
consistent with the purposes of promoting treatment. Similarly, petitioners argue, the content of
the victim’s statement was not of the type reasonably relied upon by a physician in treatment or
diagnosis because the identity of the perpetrators was not relevant to the type of medical
treatment the victim would receive.

       We find no error. The victim was found by medical personnel in her bed and in
deplorable living conditions. She presented to the hospital with injuries and an overall condition
that medical providers testified were among the worst they had ever seen. She recounted to
Nurse Maynard and Dr. McQuillen how poorly she had been treated by the people entrusted with
her care and thanked medical personnel for finding her and asked that she not be returned to her
home. Because the victim was physically incapacitated while living in her own home, it was
important that the cause of her injuries be ascertained so that decisions could be made as to
whether she be returned there and to the care of petitioners, referred to a social worker, or
become a ward of the State.7 Thus, the victim’s testimony did not violate Rule 803(4) and was
properly admitted at trial.

       Petitioners’ next assignment of error concerns whether the State properly cross-examined
them as to whether they could prove, through documentation such as credit card or pharmacy
records, that they filled the victim’s prescription medications. (Petitioners could provide no such
records below.) Petitioners contend that, through this line of questioning, the State improperly


       6
         West Virginia Rule of Evidence 801(c) defines “hearsay” as “a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and (2) a party offers in
evidence to prove the truth of the matter asserted in the statement.”
       7
         According to the State’s brief, the victim became a ward of the State. After she was
discharged from the hospital on July 22, 2015, she was placed in a nursing home where she died
approximately one month later.
                                                7

shifted the burden of proof to petitioners, effectively requiring then to prove their innocence.
Similarly, they argue that, during closing arguments, the State improperly remarked that
Petitioner Monty Bone “started explaining about chronic and acute illnesses and stated that [the
victim’s] chronic illnesses were maintained while the [petitioners] assumed care. What evidence
is there? There’s no pharmacy records.” On appeal, petitioners argue that the State’s burden-
shifting and closing remarks are reversible error that warrant a new trial.

        Upon our review of the record, it is clear that petitioners failed to object to either the line
of questioning or the State’s closing remarks about which they now complain. This Court has
cautioned that “‘[w]here objections were not shown to have been made in the trial court, and the
matters concerned were not jurisdictional in character, such objections will not be considered on
appeal.’” (citation omitted)). Syl. Pt. 3, O’Neal v. Peake Operating Co., 185 W. Va. 28, 404
S.E.2d 420 (1991). See also Syl. Pt. 11, State v. Davis, 205 W. Va. 569, 519 S.E.2d 852 (1999)
(“‘Failure to make timely and proper objection to remarks of counsel made in the presence of the
jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter
either in the trial court or in the appellate court.’ Syllabus Point 6, Yuncke v. Welker, 128 W.Va.
299, 36 S.E.2d 410 (1945).”). Petitioners have, thus, waived this assignment of error.

       Next, we address Petitioner Monty Bone’s argument that the circuit court erred in
allowing the State to ask leading questions of its witness, Adult Protective Services worker
Rebecca Jennings. He specifically points to the following exchange:

       Q: 	Did [Petitioner Monty Bone] provide you with the statements that he said he
           was going to?

       A: No.

       Q: Are you aware that his son was school age?

       A: Yes.

       Q: So, he wasn’t in school? Or, was it during the summer?

       [Defense counsel]: Objection, Your Honor. She’s leading the witness.

       The Court: Overruled.

       Aside from referencing West Virginia Rule of Evidence 611(c), which generally prohibits
leading questions on direct examination “except as may be necessary to develop a witness’s
testimony[,]” Petitioner Monty Bone fails to even suggest that this obviously benign line of
questioning prejudiced his defense. Because we find this assignment of error to be frivolous and,
therefore, without merit, we decline to address it.

         Petitioner Monty Bone next argues that the State failed to produce sufficient evidence
that he either conspired to neglect the victim or intended to cause her bodily injury. He contends
that, to the contrary, the evidence showed that he and Petitioner Sonja Bone helped and attended
to the victim to the best of their abilities. For example, Sonja testified that her daily routine
                                                  8

included toileting the victim and changing her clothes; bathing her; helping her into her
wheelchair and putting her into her recliner to watch television; and fixing her a hot and healthy
breakfast. Both petitioners testified that Sonja sewed a cushion out of sheepskin for the victim’s
wheelchair to keep the worn chair from scraping her. Similarly, Petitioner Monty Bone testified
that he attempted to prevent her from falling out of bed by purchasing and attempting to install a
bedrail. He contends that this evidence demonstrated that both petitioners tried to make the
victim feel safe, loved, and cared for at all times and that they had no intent to cause her bodily
injury. Regarding the conspiracy conviction, Petitioner Monty Bone argues that there was no
reason to conspire to neglect the victim because he “owned the bank account and could use it in
any manner he saw fit.”

        It is well settled that this Court’s standard of reviewing claims of insufficiency of
the evidence places a heavy burden on a criminal defendant:

       “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).

Syl. Pt. 1, State v. Juntilla, 227 W. Va. 492, 711 S.E.2d 562 (2011). Moreover,

       “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).

Juntilla, 227 W. Va. at 494, 711 S.E.2d at 564, at syl. pt. 2.

        Viewing the evidence in the light most favorable to the State, and crediting all inferences
and credibility assessments that the jury might have drawn in favor of the prosecution, we
conclude that Petitioner Monty Bone has failed to satisfy his burden. As previously recounted,
there was more than sufficient evidence that petitioners conspired to abuse and neglect the
victim. The victim was in dire physical condition when she was found in her home by medical
personnel. While under the care of petitioners, she presented with numerous pressure ulcers,
multiple bruises, skin tears, and scabs, as well as old bandages that needed changing. According

                                                  9

to Dr. McQuillen, the victim had bruises on her breasts that were consistent with being tweaked,
twisted, or pinched. The victim told medical personnel that petitioners kicked, stomped, and
punched her, threw her onto the bed, and failed to turn, bathe, or feed her hot meals. The victim’s
living conditions were so deplorable, and her physical condition so poor, that she asked never to
be returned to her home. Medical personnel described her condition as being among the worst
they had ever seen. Given these facts, it is clear that the evidence was more than sufficient to
convict petitioners of the crimes for which they were tried.

        Finally, in a cross-assignment of error, the State argues that the circuit court erred in
sentencing petitioners to one to five year terms of incarceration for their convictions of abuse or
neglect of an incapacitated person resulting in bodily injury, and in imposing no monetary fine.
The State argues that the applicable statute, West Virginia Code § 61-2-29(d), prescribes a fine
of “not less than $100 nor more than $1,000” and imprisonment for “not less than two years nor
more than ten years.”8 The State contends that petitioners’ sentences should be vacated and the
cases remanded for proper sentencing, in conformity with this statute. Petitioner Monty Bone
counters that, at the sentencing hearing, the State failed to object to the sentences imposed and
that the circuit court, in its discretion, determined that lesser sentences were appropriate.9

        This Court has held that it “‘reviews sentencing orders . . . under a deferential abuse of
discretion standard, unless the order violates statutory or constitutional commands.’ Syl. Pt. 1, in
part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, in relevant part, State v.
James, 227 W. Va. 407, 710 S.E.2d 98 (2011). Under West Virginia Rule of Criminal Procedure
35(a), “[t]he court may correct an illegal sentence at any time . . . .” We have recognized that
“while most illegal sentences are struck down for excess, so too can a sentence be illegal for
failing to meet the statutory minimum punishment.” State v. Hubbard, No. 11-0690, 2012 WL
2892350, at *3 (W.Va. Feb. 13, 2012) (memorandum decision). Clearly, the sentences imposed
are illegal ones because they do not fall within the parameters of the applicable statute.
Accordingly, we vacate petitioners’ sentences and remand this case to the circuit court for re-
sentencing in conformity with the applicable statute.

        For the foregoing reasons, we affirm the circuit court’s July 24, 2017, orders that denied
petitioners’ motions for a new trial; we further vacate the sentencing orders, and remand this case
to the circuit court for re-sentencing in conformity with the applicable statute.

                                                                Affirmed, in part, vacated, in part,
                                                                   and remanded, with directions.

       8
           West Virginia Code § 61-2-29(d) states:

       A caregiver of an incapacitated adult who intentionally and maliciously abuses or
       neglects an incapacitated adult and causes the incapacitated adult bodily injury is
       guilty of a felony and, upon conviction thereof, shall be fined not less than $100
       nor more than $1,000 and imprisoned in a state correctional facility not less than
       two years nor more than ten years.
       9
         Petitioner Sonja Bone, whose sentences were ordered suspended, agrees with the State’s
cross-assignment of error regarding sentencing.
                                                10 

ISSUED: November 16, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell, sitting by temporary assignment




                                                11 

