        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                 September 2016 Term

                                   _______________                     FILED
                                                                   October 12, 2016
                                                                        released at 3:00 p.m.
                                     No. 15-0641                      RORY L. PERRY, II CLERK
                                   _______________                  SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA


                             STATE OF WEST VIRGINIA,
                              Plaintiff Below, Respondent

                                          v.

                               SUMMER McDANIEL,
                              Defendant Below, Petitioner

                                   _______________

                 Appeal from the Circuit Court of Hardy County

                  The Honorable Andrew N. Frye, Jr., Judge,

                            by Special Appointment

                               Case. No. 14-F-41


                                     AFFIRMED
                                   _______________

                               Submitted October 5, 2016
                                Filed: October 12, 2016


Jonie E. Nelson, Esq.                          Patrick Morrisey, Esq.

Nelson Legal Services, LC                      Attorney General

Petersburg, West Virginia                      Shannon Frederick Kiser, Esq.

Counsel for the Petitioner                     Assistant Attorney General

                                               Gordon Lee Mowen, II
                                               Assistant Attorney General
                                               Charleston, West Virginia
                                               Counsel for the Respondent

CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




       1. “Other criminal act evidence admissible as part of the res gestae or same

transaction introduced for the purpose of explaining the crime charged must be confined to

that which is reasonably necessary to accomplish such purpose.” Syl. pt. 1, State v. Spicer,

162 W.Va. 127, 245 S.E.2d 922 (1978).



       2. “A cardinal rule of statutory construction is that significance and effect must, if

possible, be given to every section, clause, word or part of the statute.” Syl. pt. 3, Meadows

v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530 S.E.2d 676 (1999).



       3. “‘[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 a fact which the other does not.’

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309

(1932).” Syl. pt. 4, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).



       4. “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.” Syl. pt. 10, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).



       5. “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. To the extent that our prior cases are inconsistent, they

are expressly overruled.” Syl. pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Chief Justice Ketchum:



       This case is before this Court upon the appeal of Summer McDaniel (“McDaniel”)

from the June 23, 2015, order of the Circuit Court of Hardy County imposing sentence upon

her conviction of involuntary manslaughter, concealment of a deceased human body and

other offenses, following a jury trial, relating to the death of her twenty-six-day-old infant

son (“infant”).



       The State maintained that McDaniel and Joseph Christy (“Christy”), the infant’s

putative father, left the State of Colorado with the infant and four other children, where child

protective proceedings were pending, and stopped at a campsite in Hardy County. At the

campsite, knowing the infant was sick, neither McDaniel nor Christy made any attempt to

get medical help, and the infant, suffering from significant weight loss, died of malnutrition

and dehydration. The infant was then buried in a concealed, shallow grave near the campsite.



       McDaniel, emphasizing that the autopsy found the infant’s cause of death to be

undetermined, raises a number of assignments of error, particularly relating to the State’s

evidence of the events in Colorado. McDaniel asks this Court to set her convictions aside

and grant her a new trial.




                                               1

        Upon review, this Court is of the opinion that McDaniel’s assignments of error are

without merit, and we affirm her convictions regarding the death of the infant. Moreover,

we affirm the sentencing order entered in the Circuit Court of Hardy County on June 23,

2015.



                                  I. Factual Background

        On June 9, 2014, McDaniel gave birth to an infant son in the State of Colorado. The

infant was McDaniel’s fifth child. A toxicology report concerning the birth revealed the

presence of illicit drugs in both McDaniel and the infant. As later described by the Colorado

Department of Human Services, McDaniel tested positive for methamphetamine, and the

infant tested positive for amphetamine, thus placing the welfare of the infant at risk.1

        While in the hospital, McDaniel was served by a caseworker for the Colorado

Department of Human Services with a Notice of Preliminary Protective Proceeding. The

Notice concerned the infant and McDaniel’s other four children, ages eleven and under, and

directed McDaniel to (1) comply with family treatment drug court services and

recommendations, (2) comply with all recommendations made by the Colorado Department



        1
        The terms “methamphetamine” and “amphetamine” were used interchangeably in
the proceedings below. While those substances are related, they are not synonymous. See
Dorland’s Illustrated Medical Dictionary (31st ed. 2007) (indicating that
methamphetamine is closely related chemically, and has similar actions, to amphetamine).
See also Baer v. State, 942 N.E.2d 80 (Ind. 2011) (citing toxicologist’s testimony that
amphetamine is methamphetamine’s break-down product).

                                              2

of Human Services and (3) notify the Department of any changes in address or telephone

number. Custody of the children was to remain with McDaniel, subject to the Department’s

protective supervision.



       On June 17, 2014, the Colorado Department of Human Services filed a neglect

petition against McDaniel and Christy with regard to all five children. The petition alleged,

inter alia, that McDaniel has a history of substance abuse which places the children at risk.2

In the meantime, McDaniel, Christy and the children left Colorado and drove to West

Virginia. They arrived at a campsite in the George Washington National Forest in Hardy

County in early July 2014.



       On July 5, 2014, a Jeep, reported as stolen, was pursued and stopped by police officers

on Interstate 79 near Morgantown, West Virginia. Christy was driving the Jeep, and

McDaniel and four children were passengers. The children were unrestrained by seat belts

or child seats. Christy, identified as a fugitive from justice, was taken into custody. Both

Christy and McDaniel were charged with child neglect. According to the police report,

Christy told the police that he had “just lost and buried his son the previous day [July 4,

2014].” Christy stated that the four children were sleeping in a tent at the campsite while he,



       2
        While in Colorado, McDaniel admitted she was breast feeding the infant even
though she was advised not to by the hospital.

                                              3

McDaniel and the infant slept in the Jeep. Christy maintained that, at some point during the

night, their two-year-old child climbed into the Jeep and unintentionally slept on top of the

infant, resulting in the infant’s death. The infant was twenty-six days old.



       Later, on July 5, 2014, Christy and McDaniel were transported to the campsite in the

George Washington National Forest where they guided police officers to the location where

the infant was buried.



                                II. Procedural Background

       On October 6, 2014, the Hardy County grand jury returned an indictment charging

Christy and McDaniel jointly with the following offenses relating to the death of the infant:

count 1, involuntary manslaughter; count 2, child neglect resulting in death; count 3,

conspiracy to commit child neglect resulting in death; count 4, concealment of a deceased

human body; count 5, conspiracy to conceal a deceased human body; and count 6, child

neglect creating a substantial risk of death.3




       3
        Count 3 of the indictment, charging conspiracy to commit child neglect resulting
in death, was dismissed with prejudice prior to McDaniel’s trial.

                                                 4

       Between November 2014 and January 2015, the State filed four notices of its intent

to use Rule 404(b) evidence at trial.4 All the evidence noticed concerned the events in

Colorado and consisted of hospital records; the toxicology report; test results showing the

presence of methamphetamine and amphetamine in McDaniel and the infant at the time of

the infant’s birth; McDaniel’s lack of prenatal care regarding the infant; and documents

concerning the Preliminary Protective Proceeding which outlined McDaniel’s responsibilities

pursuant to the authority of the Colorado Department of Human Services.



       Significantly, the State’s third notice of intent to use Rule 404(b) evidence, which

concerned the hospital records and lack of prenatal care, stated: “The State does not believe

this evidence is really 404(b) evidence but that it is rather ‘res gestae’ but the State is

disclosing that it plans to use this evidence to give the [defendants] the opportunity to

object.” All four notices of intent to use Rule 404(b) evidence stated that the purpose of the

evidence was to “tell the complete story.”




       4
           Rule 404(b)(2) of the West Virginia Rules of Evidence states, in part:

               Any party seeking the admission of evidence pursuant to this

       subsection must:

               (A) provide reasonable notice of the general nature and the specific
       and precise purpose for which the evidence is being offered by the party at
       trial; and
               (B) do so before trial - or during trial if the court, for good cause,
       excuses lack of pretrial notice.

                                               5

       The circuit court conducted two pre-trial hearings concerning the Rule 404(b)

evidence. The first hearing was conducted in December 2014 followed by an order entered

on December 29, 2014. The circuit court concluded that the evidence was admissible as part

of the res gestae and also admissible under Rule 404(b). The court found that the hospital

records and toxicology report were “credible and believable.” The presence of the illicit

drugs was determined to be part of the res gestae as “inextricably intertwined with the events

as they allegedly occurred.”



       In the alternative, the presence of the illicit drugs was found admissible under Rule

404(b), i.e., the “act” occurred; was committed by McDaniel; was relevant; was close in time

to the incidents giving rise to the indictment; and the probative value thereof outweighed the

prejudicial effect. On the latter point, the circuit court noted that the inflammatory effect of

testimony concerning methamphetamines and amphetamines would be mitigated by a

limiting instruction.



       In January 2015, a second Rule 404(b) hearing was conducted followed by an order

entered on January 15, 2015. The circuit court concluded that the evidence would be

admissible “as tending to prove the Defendant’s neglect of the child from before birth until

the child’s death.”




                                               6

       McDaniel’s trial began on January 27, 2015. Shortly before McDaniel’s trial Christy

entered guilty pleas to four counts of the indictment. The counts to which he pled guilty are

not set forth in the appendix record before this Court. The State’s theory at trial was that

McDaniel and Christy, ignoring the services and recommendations of the Colorado

authorities regarding the infant, left Colorado and ultimately arrived at a campsite in the

George Washington National Forest with the infant and the other four children. There were

little or no baby supplies for the infant, such as baby bottles, diaper bags, powder, or diaper

rash cream. On July 4, 2014, at the campsite, or prior thereto, McDaniel was aware that the

infant was sick because the infant looked pale and was vomiting. However, neither

McDaniel nor Christy made any attempt to get medical help. The infant, twenty-six days old

and suffering from substantial weight loss, died of malnutrition and dehydration. The

deceased infant was buried in a concealed, shallow grave in the National Forest. The

location of the deceased infant was not revealed to law enforcement until after Christy and

McDaniel, in a stolen vehicle, were pursued and stopped on Interstate 79 on July 5, 2014.5




       5
        The evidence of the State revealed that the infant weighed six pounds, fifteen
ounces, at birth and six pounds postmortem. The body was found prior to decomposition.
The State maintained that after twenty-six days the infant should have weighed
approximately eight pounds.

                                              7

       Although McDaniel did not testify, her defense at trial rested largely on the autopsy

report which stated that the infant’s death was undetermined and that the infant was drug

free. McDaniel presented evidence that the other four children were normal and well-fed.

Moreover, although her counsel described Christy as controlling and as “the guy that entered

the plea,”6 defense counsel also told the jury that Christy said that the two-year-old

unintentionally slept on the infant on July 4, 2014, resulting in the infant’s death. Finally,

the defense asserted that, although McDaniel did not initially disclose the infant’s grave site,

she then cooperated with police and assisted in locating the infant’s grave, within forty-eight

hours of the infant’s death.



       At the conclusion of the trial, the jury found McDaniel guilty on all counts.

Thereafter, the circuit court denied McDaniel’s combined motion for directed verdicts of

acquittal or for a new trial. On June 23, 2015, the circuit court entered a final order directing

McDaniel to serve consecutive penitentiary sentences of three to fifteen years for child

neglect resulting in death; one to five years for concealment of a deceased human body; one

to five years for conspiracy to conceal a deceased human body; and one to five years for child

neglect creating a substantial risk of death. In addition, the circuit court directed McDaniel




       6
          Defense counsel stated during closing arguments: “Who is Mr. Christy? Well,
first of all, he’s the guy that entered the plea. The culprit has entered a plea. He’s going
to be punished and he’s gone.”

                                               8

to serve one year in jail for the involuntary manslaughter conviction, to run concurrently with

the other sentences. McDaniel’s appeal to this Court followed.



                                 III. Standards of Review

       McDaniel’s assignments of error raise various legal principles and differing standards

of review. Therefore, this Court will address those principles and standards as they pertain

to each assignment of error. However, we note the following general standard of review

which we have applied in criminal cases: “‘This Court reviews the circuit court’s final order

and ultimate disposition under an abuse of discretion standard. We review challenges to

findings of fact under a clearly erroneous standard; conclusions of law are reviewed de

novo.’ Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. pt.

1, State v. Keesecker, 222 W.Va. 139, 663 S.E.2d 593 (2008). Accord syl. pt. 1, State v.

Hawk, 222 W.Va. 248, 664 S.E.2d 133 (2008).



                                       IV. Discussion

                         A. Other Act Evidence and Rule 404(b)

       All of the evidence in relation to this assignment of error concerned the events in

Colorado and consisted of hospital records; the toxicology report; the presence of

methamphetamine and amphetamine in McDaniel and the infant; McDaniel’s lack of prenatal

care; and the Preliminary Protective Proceeding pursued by the Colorado Department of


                                              9

Human Services. That evidence principally arose between June 9, 2014, when the infant was

born, and the time Christy and McDaniel left Colorado for West Virginia in late June or early

July 2014.



         McDaniel contends that the circuit court committed error by admitting her “prior bad

acts that occurred in the State of Colorado” under Rule 404(b) of the West Virginia Rules of

Evidence, without conducting a balancing test, without making the required findings and

without concluding that the evidence was admissible for a proper purpose. In particular,

McDaniel asserts that the circuit court committed error in allowing evidence that McDaniel

and the infant tested positive for the illicit drugs at the time of the infant’s birth, since the

infant experienced no withdrawal symptoms and was found to be drug free at the time of

death.

         Rule 404(b) states in part:


                (b) Crimes, wrongs, or other acts. ­
                (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.


         In West Virginia, the leading case on Rule 404(b) is State v. McGinnis, 193 W.Va.

147, 455 S.E.2d 516 (1994), which requires the trial court to conduct an in camera hearing


                                               10

when Rule 404(b) evidence is going to be offered at trial. Syllabus point 2 of McGinnis

states that, at the conclusion of the in camera hearing,


       the trial court must be satisfied by a preponderance of the evidence that the
       acts or conduct occurred and that the defendant committed the acts. If the trial
       court does not find by a preponderance of the evidence that the acts or conduct
       was committed or that the defendant was the actor, the evidence should be
       excluded under Rule 404(b). If a sufficient showing has been made, the trial
       court must then determine the relevancy of the evidence under Rules 401 and
       402 of the West Virginia Rules of Evidence and conduct the balancing
       required under Rule 403 of the West Virginia Rules of Evidence. If the trial
       court is then satisfied that the Rule 404(b) evidence is admissible, it should
       instruct the jury on the limited purpose for which such evidence has been
       admitted. A limiting instruction should be given at the time the evidence is
       offered, and we recommend that it be repeated in the trial court’s general
       charge to the jury at the conclusion of the evidence.



Accord syl. pt. 1, State v. Nelson, 221 W.Va. 327, 655 S.E.2d 73 (2007). As the McGinnis

opinion states, this Court reviews a circuit court’s decision “to admit evidence pursuant to

Rule 404(b) under an abuse of discretion standard.” 193 W.Va. at 159, 455 S.E.2d at 528.

Accord State v. Williams, 198 W.Va. 274, 279, 480 S.E.2d 162, 167 (1996).



       In the present case, the circuit court conducted two pre-trial hearings concerning the

State’s Rule 404(b) evidence. The presence of the illicit drugs was found admissible under

Rule 404(b) upon the basis that (1) the “act” occurred, (2) was committed by McDaniel, (3)

was relevant, (4) was close in time to the incidents giving rise to the indictment and (5) the

probative value thereof outweighed the prejudicial effect. The circuit court noted that the

                                             11

inflammatory effect of testimony concerning the illicit drugs would be mitigated by a limiting

instruction. During McDaniel’s trial, the circuit court gave the jury a limiting instruction

during the State’s case-in-chief and again during the charge to the jury.7



       Nevertheless, the circuit court expressed an alternate ground for admitting the State’s

evidence, i.e., that the evidence was admissible as part of the res gestae and also admissible

under Rule 404(b). Consequently, with regard to the illicit drugs, the circuit court found that

the State’s evidence was “intrinsic evidence which is inextricably intertwined with the events

as they allegedly occurred as to be part and parcel of the res gestae. In other words, it’s part

of the act itself.” The State had raised the alternative ground of intrinsic evidence versus

Rule 404(b) evidence prior to trial. In fact, out of the jury’s presence, the prosecutor stated

that he believed the evidence to be part of the res gestae and had formally noticed the

evidence to the defense under Rule 404(b) “just to exercise caution.”




       7
       The circuit court gave the following instruction during the charge to the jury
which was similar to the instruction given during the State’s case-in-chief:

               The Court has heretofore instructed you that all the witnesses from
       Colorado [were] allowed to be presented to show you the whole picture in
       this case. You should not consider this evidence as showing guilt or
       innocence. The evidence was admitted for the specific purpose of showing
       the entire picture.

                                              12

       This Court is of the opinion that the other act evidence emanating from Colorado, i.e.,

the hospital records, the toxicology report, the presence of the illicit drugs at the time of birth,

the lack of prenatal care and the Colorado neglect proceedings, constituted intrinsic or res

gestae evidence, not subject to the same analysis as that required under Rule 404(b).

Moreover, this Court concludes that the value of the evidence, as well as the State’s need to

present it to complete the story culminating in the infant’s death, outweighed the prejudicial

impact of the evidence at trial, particularly in view of the limiting instructions given to the

jury. As explained in Vol. 1, Louis J. Palmer, Jr., Justice Robin Jean Davis, Franklin D.

Cleckley, Handbook on Evidence for West Virginia Lawyers § 404.04[5][a] (6th ed. 2015):


              Rule 404(b) only applies to limit the admissibility of evidence of
       extrinsic acts. Intrinsic evidence, on the other hand, is generally admissible so
       that the jury may evaluate all the circumstances under which the defendant
       acted. That is, intrinsic evidence of a crime is admissible without analysis
       pursuant to Rule 404(b). * * *

       Other bad act evidence is intrinsic and admissible if it is (1) an uncharged
       offense which arose out of the same transaction or series of transactions as the
       charged offense, (2) inextricably intertwined with the evidence regarding the
       charged offense, or (3) necessary to complete the story of the crime. This is
       to say that evidence, not part of the crime charged but pertaining to the chain
       of events explaining the context, motive, and set-up of the crime, is properly
       admitted if linked in time and circumstances with the charged crime, or forms
       an integral and natural part of an account of the crime, or is necessary to
       complete the story of the crime for the jury. If the proffer fits into the intrinsic
       category, evidence of other crimes should not be suppressed when those facts
       come in as part and parcel of the proof charged in the indictment. Regardless
       of whether the evidence is intrinsic or extrinsic to the charged crime, it must
       still pass the Rule 403 test to ensure that its probative value is not substantially
       outweighed by the danger of unfair prejudice.


                                                13

       Syllabus point 1 of State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978), holds:

“Other criminal act evidence admissible as part of the res gestae or same transaction

introduced for the purpose of explaining the crime charged must be confined to that which

is reasonably necessary to accomplish such purpose.” Accord syl. pt. 8, State v. Dennis, 216

W.Va. 331, 607 S.E.2d 437 (2004); syl. pt. 4, State v. Hager, 204 W.Va. 28, 511 S.E.2d 139

(1998); syl. pt. 2, State v. McGhee, 193 W.Va. 164, 455 S.E.2d 533 (1995). See State v.

McKinley, 234 W.Va. 143, 155, 764 S.E.2d 303, 315 (2014) (“Events, declarations and

circumstances which are near in time, causally connected with and illustrative of transactions

being investigated are generally considered res gestae and admissible at trial.” (citation

omitted)).



       Here, the infant lived only twenty-six days, and the evidence in question was complete

within that period by the time McDaniel and Christy left Colorado for West Virginia. The

State presented the evidence at McDaniel’s trial through the testimony of three Colorado

witnesses: a pediatrician, a medical social worker, and a child protection caseworker from

the Colorado Department of Human Services. Those witnesses provided the underlying

fabric or context regarding the events resulting in the indictment.




                                             14

          In presenting the evidence in question, the witnesses indicated that McDaniel’s actions

in Colorado were irresponsible, rather than against the law. For example, McDaniel’s lack

of prenatal care was related to the hospital’s concern that McDaniel had a history of

deliveries by Caesarean section. Moreover, after the delivery of the infant McDaniel left

Colorado without obtaining the follow-up care and services, and without reporting where the

family had gone as directed by the Colorado Department of Human Services. At that time,

a neglect petition had been filed against McDaniel and Christy with regard to all five

children. The appendix record before this Court shows that the actions taken by authorities

in Colorado and McDaniel’s response thereto were triggered by the presence of the

methamphetamine and amphetamine at the time of the infant’s birth. According to the State,

all of those circumstances contributed to the family’s leaving Colorado and ultimately

arriving at the campsite in West Virginia.



          Accordingly, this Court holds that the evidence in question was intrinsic in nature as

part of the res gestae underlying the allegations in the indictment. The admission of the

evidence was within the circuit court’s discretion. Therefore, this assignment is without

merit.8


          8
         The circumstances herein are different from those in State v. Louk, 237 W.Va.
200, 786 S.E.2d 219 (2016), where the defendant mother was charged with the prenatal
ingestion of methamphetamine directly resulting in the death of her child. The child,
“essentially brain dead,” died in the hospital after eleven days. In the current matter, the
infant, twenty-six-days-old, was drug free at death and had been released to McDaniel by

                                                15

                      B. Concealment of a Deceased Human Body

       Pursuant to subsection (a) of W.Va. Code, 61-2-5a [2006], any person who, by any

means, knowingly and willfully conceals, attempts to conceal, or who otherwise aids and

abets any person to conceal, a deceased human body (where death occurred as a result of

criminal activity) is guilty of a felony. Subsection (b) of W.Va. Code, 61-2-5a [2006], states:


               It shall be a complete defense in a prosecution pursuant to subsection
       (a) of this section that the defendant affirmatively brought to the attention of
       law enforcement within forty-eight hours of concealing the body and prior to
       being contacted regarding the death by law enforcement the existence and
       location of the concealed deceased human body.


       McDaniel contends that her conviction under W.Va. Code, 61-2-5a [2006], and her

related conspiracy conviction, should be set aside because she and Christy disclosed the

infant’s death and burial prior to any knowledge law enforcement had of the infant’s

existence and because it is undisputed that the precise location of the infant’s grave was

made known to law enforcement within forty-eight hours of the infant’s death.9




the hospital in Colorado, subject to the supervision of the Colorado Department of Human
Services. McDaniel maintained that the infant never exhibited withdrawal symptoms.
       9
         McDaniel also asserts that she could only assist Christy in directing the police to
the infant’s grave because she had not participated in the infant’s burial, and,
consequently, the evidence was unclear whether she was aware of the grave’s precise
location. However, inasmuch as the testimony at trial revealed that both McDaniel and
Christy escorted the police through the wooded area toward the grave, McDaniel’s
assertion was for the jury to resolve.

                                              16

       The State, however, emphasizes the language of W.Va. Code, 61-2-5a [2006], that the

concealment must be “affirmatively brought to the attention of law enforcement.” According

to the State, that was not done in this case since the actions of McDaniel and Christy were

evasive, even though the infant was located within forty-eight hours. Therefore, the

“complete defense” provision of the statute did not apply, and the charge of concealment was

properly a question for the jury.



       The State’s position is correct that the complete defense provision under subsection

(b) of W.Va. Code, 61-2-5a [2006], is dependant upon “affirmatively” bringing the

concealment of the deceased human body to the attention of law enforcement. As this Court

made clear in syllabus point 3 of Meadows v. Wal-Mart Stores, Inc., 207 W.Va. 203, 530

S.E.2d 676 (1999): “A cardinal rule of statutory construction is that significance and effect

must, if possible, be given to every section, clause, word or part of the statute.” Accord syl.

pt. 3, Jackson v. Belcher, 232 W.Va. 513, 753 S.E.2d 11 (2013).



       Here, neither McDaniel nor Christy reported the death and burial of the infant until

their vehicle was stopped the next day on Interstate 79 after eluding the police for ten miles.

The vehicle was reported as stolen. Although Christy then told the police that he had just lost

and buried his son, McDaniel initially told the police that the infant died in Virginia. Officer

Montague of the Morgantown Police Department testified: “I asked [McDaniel] from what


                                              17

and she stated SIDS. I asked her where this occurred, in what hospital. She stated in

Virginia. At that point she refused to say anything else.”



       In addition, State Police Trooper Hartman testified:


              I’ve checked with local area dispatches in Virginia and West Virginia.
       There’s been no call logged for any type of anything in reference to this
       investigation whereas a baby was sick or a baby had died or anything to that
       manner. At every opportunity it seems that the subjects had opportunity to
       speak with police or seek out police but they only did so after they were caught
       fleeing from the police. That was the only time that they did speak with the
       police about the death of the baby.



       Although McDaniel later assisted the police in locating the infant’s grave, the circuit

court concluded during post-trial proceedings that McDaniel did not take affirmative action

within the meaning of W.Va. Code, 61-2-5a [2006]. This Court agrees with that conclusion

and finds this assignment of error to be without merit.



                          C. Merger of the Neglect Convictions

       The indictment charged McDaniel, in count 2, with child neglect resulting in death

and, in count 6, with child neglect creating a substantial risk of death. The jury found

McDaniel guilty of both regarding the infant. McDaniel contends that the two counts should




                                             18

have been merged into a single offense and that the circuit court’s failure to do so violated

her constitutional protection against double jeopardy.10



       The merged issue was raised by the defense throughout the proceedings below, and

relief was ultimately denied by the circuit court pursuant to the post-trial order entered on

June 23, 2015. McDaniel asserts that child neglect creating a substantial risk of death is a

lesser included offense of child neglect resulting in death, since the infant died in this case.



       The offense of child neglect resulting in death, as charged in the indictment, is found

in W.Va. Code, 61-8D-4a(a) [1997], and states that if any parent “shall neglect a child under

his or her care, custody or control and by such neglect cause the death of said child,” then

such parent shall be guilty of a felony.



       The offense of child neglect creating a substantial risk of death, as charged in the

indictment, is found in W.Va. Code, 61-8D-4(c) [2014], and states that if a parent “grossly

neglects a child and by that gross neglect creates a substantial risk of death or serious bodily




       10
         The trial transcript indicates that count 6 was designated as count 5 for purposes
of jury deliberations in view of the pre-trial dismissal of count 3. For purposes of this
opinion and consistent with the indictment, we will continue to refer to count 6 as
charging McDaniel with child neglect creating a substantial risk of death. See n. 3, supra.


                                              19

injury, as serious bodily injury is defined in section one, article eight-b of this chapter,”

(emphasis added) then the parent is guilty of a felony.



       The latter statute has several components. Subsections (a), (b) and (c) of W.Va. Code,

61-8D-4 [2014], set forth increasing levels of culpability, i.e., in subsection (a), neglect

causing the child “bodily injury;” in subsection (b), neglect causing the child “serious bodily

injury;” and in subsection (c), gross neglect, creating “a substantial risk of death or serious

bodily injury.”



       The terms “bodily injury” and “serious bodily injury” are separately defined in W.Va.

Code, 61-8B-1 [2007], as follows:


              “Bodily injury” means substantial physical pain, illness or any
       impairment of physical condition.
              “Serious bodily injury” means bodily injury which creates a substantial
       risk of death, which causes serious or prolonged disfigurement, prolonged
       impairment of health or prolonged loss or impairment of the function of any
       bodily organ.



       Syllabus point 4 of State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992), holds:

“‘[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 a fact which the other does not.’ Blockburger v.


                                              20

United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).” Accord syl.

pt. 4, State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997). In addition, syllabus point 5

of Gill states, in part, that the Blockburger test “is a rule of statutory construction. The rule

is not controlling where there is a clear indication of contrary legislative intent.” Accord syl.

pt. 6, Mirandy v. Smith, 237 W.Va. 363, 787 S.E.2d 634 (2016).



       Here, W.Va. Code, 61-8D-4a(a) [1997], which McDaniel considers the primary

statute, is based on “neglect” causing the death of a child. In contrast, the other statute,

W.Va. Code, 61-8D-4(c) [2014], differentiates neglect causing bodily injury; neglect causing

serious bodily injury; and gross neglect creating a substantial risk of death or serious bodily

injury. Thus, the latter type of neglect, for which McDaniel was charged, includes the

additional component “gross neglect” which does not appear as an element of proof under

W.Va. Code, 61-8D-4a(a) [1997]. Moreover, the legislative definition of “serious bodily

injury,” set forth above, places “substantial risk of death” together with “serious or prolonged

disfigurement, prolonged impairment of health or prolonged loss or impairment of the

function of any bodily organ.”11 In short, W.Va. Code, 61-8D-4(c) [2014], is a more complex

statute than W.Va. Code, 61-8D-4a(a) [1997], and contains provisions set forth by the

Legislature which do not exist in W.Va. Code, 61-8D-4a(a) [1997]. Therefore, under Gill


       11
         The indictment, in count 6, charged McDaniel under subsection (c) but omitted
the phrase “or serious bodily injury.” Nevertheless, the circuit court’s instructions to the
jury included the definition of “serious bodily injury.”

                                               21

and Blockburger, each statute “requires proof of a fact which the other does not,” and this

Court finds no violation of McDaniel’s constitutional protection against double jeopardy.12




       12
         Blockburger was cited by the Supreme Court of Nevada in Geddings v. State,
No. 61849, 2016 WL 771006 (Nev., Feb. 25, 2016) (unpublished disposition), wherein
the court held that convictions of one count of second-degree felony murder by child
neglect and one count of child neglect with substantial bodily harm did not violate the
Double Jeopardy Clause. The Nevada court stated:

              Here, the elements of child neglect are present in both counts.
      However, child neglect with substantial bodily harm also requires that the
      victim suffer either “[b]odily injury which creates a substantial risk of death
      or which causes serious, permanent disfigurement or protracted loss or
      impairment of the function of any bodily member or organ,” or
      “[p]rolonged physical pain.” NRS 0.060(1)-(2). In contrast, felony murder
      by child neglect does not require any of those elements, but instead requires
      that the underlying felony be “inherently dangerous” and that there be “an
      immediate and causal relationship between the felonious conduct . . .
      and the death of the [child],” which are not elements of child neglect with
      substantial bodily harm. * * * Therefore, because each offense
      contains an element that the other does not, we conclude in this case that
      double jeopardy does not preclude a charge of second-degree felony murder
      by child neglect and a charge of child neglect with substantial bodily harm.

See Rule 36(c)(3) of the Nevada Rules of Appellate Procedure which states that, after
January 1, 2016, an unpublished disposition may be cited for its persuasive value. See
also State v. Myers, 216 W.Va. 120, 126, n. 10, 602 S.E.2d 796, 802, n. 10 (2004), cert.
denied, 543 U.S. 1075 (2005) (Although this Court does not ordinarily cite unpublished
decisions, such a disposition may be cited where there is a “dearth of published opinions”
dealing with the issue at hand.).

                                            22

                           D. Remaining Assignments of Error

                                  The Testinomy of R. S.

       During the trial, the State called R. S., McDaniel’s twelve-year-old son. Just before

R. S. took the stand, the State announced the likelihood that it would seek to impeach R. S.’s

testimony with a prior inconsistent statement.



       On direct examination by the State at trial, R. S. testified that the infant looked pale

and was sick. In addition, R. S. indicated that the infant was sick “a few days before going

to the campground.” However, R. S. denied seeing the infant vomit and testified that

McDaniel did not attempt to keep the infant away from the other children. R. S. was then

cross-examined by McDaniel’s counsel who brought out facts about the children’s living

conditions and the stop by the police on Interstate 79. During cross-examination, R. S.

testified that he had seen the infant’s grave.



       At that point, the State asked the circuit court for permission to play for the jury a

fifty-minute videotaped interview of R. S. conducted on July 9, 2014. The interview took

place at the Monongalia County Child Advocacy Center. In support, the State cited West

Virginia Rule of Evidence 607 which states that the credibility of a witness may be

impeached by any party, “including the party calling the witness,” and West Virginia Rule

of Evidence 613 concerning a witness’s prior statements. The State then called Kristin Kelly,


                                                 23

a therapist and forensic interviewer who conducted the videotaped interview. The video was

played for the jury over McDaniel’s objection during Kelly’s testimony. Contrary to his

direct testimony, R. S. stated during the video that the infant was throwing up and that

McDaniel kept the infant away from the other children because the infant was sick.




       McDaniel contends that the State’s impeachment of R. S. was improper because the

State made no attempt to refresh R. S.’s recollection on the stand prior to playing the

videotaped interview. In addition, McDaniel contends that the playing of the video, fifty

minutes in length, was improper because it allowed information to enter the trial that would

not have otherwise been admitted.



       This Court has carefully reviewed R. S.’s trial testimony and the videotaped interview,

and we conclude that the errors asserted by McDaniel were harmless. At trial and in the

video, R. S. confirmed that the infant looked pale and was sick. However, R. S. made no

statements about the infant’s cause of death. When asked during the video what happened

to the infant, R. S. stated that the question should be referred to Mom and Dad. Nevertheless,

R. S. said during the videotaped interview that one of his siblings sometimes slept in the

vehicle and not in the tent, a statement helpful to McDaniel’s defense at trial. Most of the

fifty-minute video concerned the children’s living conditions from the time the family left


                                             24

Colorado until Christy and McDaniel were taken into custody in West Virginia on July 5,

2014.



        The discrepancies between R. S.’s trial testimony and the videotaped interview were

limited to whether the infant had vomited and whether McDaniel had kept the infant away

from the other children. The remainder of the video was largely irrelevant. Consequently,

any flaw concerning the impeachment of R. S. did not rise to the level of reversible error.

See syl. pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S.

904 (1980) (discussing the harmless error test, where improper evidence of a non-

constitutional nature is introduced by the State in a criminal trial). Accord syl. pt. 6, State

v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987).



                              The Photographs of the Infant

        McDaniel contends that the circuit court committed error by admitting enlarged, color

photographs of the infant’s corpse. McDaniel asserts that the photographs were gruesome

and held no evidentiary value since the defense had stipulated to the infant’s death. The

State’s responds that it


        sought to admit photographs of the deceased infant’s burial site, and the
        manner in which the infant was buried. The best evidence for doing so was the
        photographs. While the photographs showed impression marks on the
        deceased infant’s skin from being buried under six inches of dirt and a large
        rock, the photographs contained no other gruesome attributes.

                                              25

      Syllabus point 8 of State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994), states: “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.”

Accord syl. pt. 5, State v. Waldron, 218 W.Va. 450, 624 S.E.2d 887 (2005). Rule 401

concerns the test for relevant evidence and Rule 402 concerns the general admissibility of

relevant evidence. Rule 403 addresses the exclusion of relevant evidence for prejudice,

confusion, waste of time, or other reasons. Syllabus point 10 of Derr explains:



              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.



Accord syl. pt. 2, State v. Copen, 211 W.Va. 501, 566 S.E.2d 638 (2002).



       Here, the circuit court admitted the photographs on the basis that they were part of the

evidence of the offenses under the indictment and that the photographs are not gruesome.

We agree. There are no autopsy photographs of the infant in the appendix record. The

photographs in question show the infant’s body intact and in relation to the shallow grave.


                                              26

Although the infant’s body appears somewhat brused, there is nothing in the photographs

which could reasonably lead to the conclusion that the photographs are gruesome and should

have been excluded as a matter of law. The ruling of the circuit court was within the

parameters of sound discretion. Therefore, this assignment of error is without merit.



                            The Comments of the Prosecutor

       Immediately before McDaniel’s trial, Christy entered guilty pleas to four counts of the

indictment. The counts to which he pled guilty are not set forth in the appendix record before

this Court. During opening statements and in closing argument, the prosecutor told the jury

that Christy had entered the pleas. Christy did not testify at McDaniel’s trial. In addition,

the prosecutor, during closing argument, brought up Hardy County community standards and

referred to Christy and McDaniel as meth-heads and baby killers. McDaniel contends that,

in making the comments, the prosecutor abandoned his quasi-judicial role and became a

partisan eager to convict. See syl. pt. 3, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710

(1977). McDaniel asserts that the comments warrant a new trial.



       In State v. Ellis, 161 W.Va. 40, 239 S.E.2d 670 (1977), this Court awarded a new trial

where the prosecutor, during opening statements, said that a co-conspirator had pled guilty

to the same offense in which the appellant was involved. As stated in 75 Am. Jur. 2d Trial

§ 439 (2007): “Unless the trial court takes action to eliminate the harmful effect of a


                                             27

prosecuting attorney’s remarks in the opening statement to the jury that another defendant

has been convicted or has pleaded guilty, such remarks may be considered prejudicial so as

to require reversal of the conviction.”



       However, in the present case no contemporaneous objection was made by McDaniel

either during opening statements or closing argument to the prosecutor’s comments about

Christy’s guilty pleas, and no action was taken by the circuit court in that regard.

Furthermore, McDaniel did not object to the prosecutor’s reference to community standards.

McDaniel’s petition for appeal states: “While Defense Counsel did not object to the

Prosecuting Attorney’s comments about the community standard, Defense Counsel’s failure

to object constituted plain error, as the comments from the Prosecuting Attorney were

improper.”



       McDaniel’s assertion of plain error is unpersuasive. During opening statements,

McDaniel’s counsel targeted Christy by telling the jury that he was abusive, that he had been

in jail in Colorado, that he had stolen a Jeep and that, against McDaniel’s wishes, Christy

insisted that the family leave Colorado in order to avoid his probation problems and court

proceedings concerning the children. In that context, the alleged error regarding the

prosecutor’s comments is less than “plain” within the meaning of this Court’s plain error

doctrine. See W.Va. R. Crim. P. 52(b); syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d


                                             28

114 (1995). Moreover, McDaniel’s combined motion for directed verdicts of acquittal or for

a new trial merely alleged that the State had violated its quasi-judicial role, without citing any

of the prosecutor’s comments. Later, at the post-trial hearing, McDaniel again referred to

the State’s quasi-judicial role, but without elaboration. This assignment of error does not

warrant the granting of a new trial.



                               The Sufficiency of the Evidence

         McDaniel contends that the evidence at trial was insufficient to sustain the verdicts

of the jury. Syllabus point 3 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995),

holds:


                 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. To the extent
         that our prior cases are inconsistent, they are expressly overruled.



Accord syl. pt. 13, State v. Blevins, 231 W.Va. 135, 744 S.E.2d 245 (2013).




                                               29

       At trial, the State presented evidence that McDaniel and Christy, ignoring the services

and recommendations of the Colorado authorities regarding the infant, left Colorado and

arrived at a campsite in the George Washington National Forest with the infant and the other

four children. There were little or no baby supplies for the infant, such as baby bottles,

diaper bags, powder, or diaper rash cream. On July 4, 2014, at the campsite, or prior thereto,

McDaniel was aware that the infant was sick because the infant looked pale and had vomited.

However, neither McDaniel nor Christy made any attempt to get medical help. The infant,

twenty-six days old and suffering from substantial weight loss, died of malnutrition and

dehydration. The infant should have weighed approximately eight pounds but weighed only

six pounds.



       The deceased infant was buried in a concealed, shallow grave in the National Forest

in Hardy County. The location of the deceased infant was not revealed to law enforcement

until after Christy and McDaniel, in a stolen vehicle, were pursued and stopped on Interstate

79 on July 5, 2014.



       This Court is of the opinion that the evidence at McDaniel’s trial was sufficient to

sustain the verdicts of the jury.




                                             30

                                     V. Conclusion

      This Court is of the opinion that McDaniel’s assignments of error are without merit,

and we affirm her convictions regarding the death of the infant. Moreover, we affirm the

sentencing order entered in the Circuit Court of Hardy County on June 23, 2015.13


                                                                                Affirmed.




      13
          Two remaining assignments of error raised by McDaniel are without merit.
McDaniel asserts that the circuit court committed error by permitting State Trooper
Hartman to refer to a substance found in the back of the stolen vehicle as baby vomit,
when the substance was untested and otherwise unknown. Trooper Hartman, however,
testified that the substance “appeared” to be baby vomit. Nevertheless, the circuit court
overruled the objection and said the jury could decide for itself based upon a photograph
submitted by the State of the contents of the Jeep depicting the substance. See W.Va. R.
Evid. 701 (authorizing the opinion of a lay witness in limited circumstances).

       In addition, McDaniel raises an issue of ineffective assistance of counsel.
However, as this Court confirmed in syllabus point 9 of State v. Woodson, 222 W.Va.
607, 671 S.E.2d 438 (2008), that issue is more appropriately raised in a habeas corpus
proceeding, where the record can be more fully developed, than on direct appeal.

                                            31
