                           STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS


                                                                           FILED
State of West Virginia,                                                     May 17, 2013
Plaintiff Below, Respondent                                             released at 3:00 p.m.
                                                                      RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
vs) No. 11-1617 (Webster County No. 11-F-6)                              OF WEST VIRGINIA



Davis Wolverton,

Defendant Below, Petitioner


and

State of West Virginia,
Plaintiff Below, Respondent

vs) No. 11-1642 (Webster County No. 11-F-7)

Kathryn Wolverton,
Defendant Below, Petitioner


                           MEMORANDUM DECISION

       Petitioner Davis Wolverton (“Mr. Wolverton”), by counsel Daniel R. Grindo, and
petitioner Kathryn Wolverton (“Ms. Wolverton”)1, by counsel Bernard R. Mauser, appeal
from the Circuit Court of Webster County’s August 29, 2011, trial order convicting each
of them of one count of delivery of a Schedule II controlled substance, conspiracy, and
gross child neglect creating risk of bodily injury or death. Additionally, they appeal the
October 28, 2011, order denying their post-trial motion for a new trial and sentencing
them. The State, by counsel, Scott E. Johnson, argues in support of the orders.

       Upon consideration of the standard of review, the parties’ briefs, the record
presented, and the oral arguments, this Court finds no substantial question of law and no
prejudicial error in this case. Thus, we find that a memorandum decision is the
appropriate disposition for this case under Rule 21 of the Revised Rules of Appellate
Procedure.




      1
          Mr. Wolverton is Ms. Wolverton’s son.
                                            1

       Phillip “P.J.” Payne (“Mr. Payne”) agreed to assist the state police by acting as a
confidential informant.2 On January 12, 2010, Mr. Payne met with Mr. Wolverton and
the two agreed to meet at Mr. Wolverton’s residence later that evening so that Mr. Payne
could purchase “pills.” Prior to the rendezvous with Mr. Wolverton, Mr. Payne was
searched by Sergeant Andrew Shingler (“Sgt. Shingler”) to ensure that he had no money
or drugs on his person. Sgt. Shingler, along with another officer, Corporal Michael
Anderson, drove Mr. Payne to Mr. Wolverton’s house and dropped him off in the road
directly in front of the house with money to purchase drugs. The police officers then
parked a small distance away with a partial view of the house.

       Mr. Payne testified that after going into the house, he purchased pills from Mr.
Wolverton: “Well, his mom [Ms. Wolverton] got off from the couch and walked into a
room, and then she came out, handed him the pills, and then I gave him money, he gave
me pills . . . .” After the sale, Mr. Payne left the house and got in the officers’ vehicle.
He gave the pills, marked “Kadian 60 milligrams,” to Sgt. Shingler. The police officers
searched Mr. Payne again prior to releasing him to ensure that he had no other drugs on
his person. Testing indicated that the pills contained morphine.

        On January 11, 2011, Mr. Wolverton and Ms. Wolverton were each indicted for
delivery of a controlled substance, to wit: morphine, a Schedule II controlled substance;
conspiracy; and gross child neglect creating risk of serious bodily injury or death.3 The
trial of both defendants took place on August 4 and 5, 2011. At the trial, Mr. Payne
testified that he had previously had infrequent contact with Mr. Wolverton. During
cross-examination of Mr. Payne, counsel for each defendant questioned Mr. Payne
regarding this testimony, which appeared to contradict sworn testimony he gave during a
previous hearing in another case.4 Mr. Wolverton’s counsel asked Mr. Payne, “So
you’ve either lied under oath here today, or you’ve lied under oath before. Which is it?”
Mr. Payne replied that he did not mean to lie, and that he must have misunderstood the
questions during the previous hearing. At the conclusion of the trial, the jury returned a
verdict against both defendants on each count of the indictment. The court entered an
order adopting the jury’s verdict on August 29, 2011.

       2
       Mr. Payne testified at trial that prior to offering to act as a confidential informant,
he had been charged with a drug related felony. Neither the police nor the prosecutor
made any deals with Mr. Payne in exchange for acting as a confidential informant in this
case.
       3
       Mr. Payne testified that two of Mr. Wolverton’s children were present in the
home when he purchased the pills from the petitioners.
       4
          The prior hearing testimony was not marked as an exhibit at trial and is not
included in the record provided to this Court. The transcripts in the record indicate that
the prior testimony was part of an abuse and neglect proceeding.
                                              2

       A hearing on post-trial motions took place on September 30, 2011. During that
hearing, the petitioners’ post-trial motions were denied. Ms. Wolverton was placed on
probation for five years. Mr. Wolverton was sentenced to a term of 1 to 15 years for
delivery of a controlled substance, 1 to 5 years for conspiracy, and 1 to 5 years for gross
child neglect, with the sentences for the first two counts to run concurrently and
consecutively to the third count. Mr. Wolverton’s sentence was suspended and he was
placed on home confinement which was to be followed by five years of probation.

       Both petitioners now appeal to this Court. They argue that the circuit court
committed error by failing to strike the testimony of Mr. Payne, by allowing the
prosecutor to present false evidence, by failing to direct a verdict of acquittal at the close
of the State’s case, and by allowing a husband and wife to sit together on the jury.

       The admissibility of testimony is evidentiary. “Absent a few exceptions, this
Court will review evidentiary and procedural 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 syl. pt. 1, Watson v. Inco Alloys Int’l, Inc., 209 W. Va.
234, 545 S.E.2d 294 (2001) (“‘“The admissibility of testimony by an expert witness is a
matter within the sound discretion of the trial court, and the trial court’s decision will not
be reversed unless it is clearly wrong.” Syllabus Point 6, Helmick v. Potomac Edison Co.,
185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116
L.Ed.2d 244 (1991).’ Syllabus point 1, West Virginia Division of Highways v. Butler, 205
W.Va. 146, 516 S.E.2d 769 (1999).”). Furthermore, “[w]e review the trial court’s
decision on [striking a juror] under an abuse of discretion standard.” State v. Wade, 200
W. Va. 637, 654, 490 S.E.2d 724, 741 (1997).

       The petitioners argue that they are entitled to a new trial pursuant to syllabus point
2, Franklin v. McBride, 226 W. Va. 375, 701 S.E.2d 97 (2009), which states,

                     In order to obtain a new trial on a claim that the
              prosecutor presented false testimony at trial, a defendant must
              demonstrate that (1) the prosecutor presented false testimony,
              (2) the prosecutor knew or should have known the testimony
              was false, and (3) the false testimony had a material effect on
              the jury verdict.

       This Court finds no merit in the petitioners’ argument because they cannot satisfy
any of the three prongs of syllabus point 2 in Franklin. Although the trial transcript
indicates that Mr. Payne was untruthful, the petitioners have produced no evidence to
show whether Mr. Payne was dishonest during the Wolvertons’ trial or in the prior
hearing. Furthermore, no evidence was produced by the petitioners showing that the
prosecutor knew Mr. Payne’s testimony was false; the record shows only that the

                                              3

prosecutor recognized that Mr. Payne had testified inconsistently.5 Finally, the
petitioners have not shown, even if Mr. Payne’s testimony at their trial was false, that it
had a material effect on the jury verdict. Both Mr. Wolverton’s counsel and Ms.
Wolverton’s separate counsel cross-examined Mr. Payne on the inconsistencies in his
sworn testimony, allowing the jury to weigh Mr. Payne’s credibility accordingly.

       Because the circuit court correctly refused to strike Mr. Payne’s testimony, we
find that the court did not err by refusing to direct a verdict of acquittal at the close of the
State’s case. We also find no error in the circuit court’s decision to allow a husband and
wife to sit together on the jury in this case. In Helmick v. Potomac Edison Company, 185
W. Va. 269, 406 S.E.2d 700 (1991), appellee Potomac Edison Company alleged that it
had been prejudiced by the trial court’s decision to allow a husband and wife to serve
together on the jury. The Court said, “We find no merit in this claim.” Helmick, 185 W.
Va. at 278, 406 S.E.2d at 709. We similarly find no merit to Mr. Wolverton’s claim,
which, like Potomac Edison Company’s claim, is absent a showing of prejudice.

       We conclude that the circuit court did not abuse its discretion with regard to Mr.
Payne’s testimony or its decision to allow a husband and wife to serve together on the
jury. Therefore, we affirm the circuit court’s August 29, 2011, trial order, and we affirm
the October 28, 2011, order sentencing the petitioners and denying post-trial motions.


                                                                                     Affirmed.

ISSUED: May 17, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       5
        Contrary to the position of the Wolvertons’ counsel during oral argument before
this Court, the record does not reflect that the prosecutor ever stated that Mr. Payne’s
testimony at trial was false. At the post-trial hearing, the prosecutor said, “I agree that
Mr. Payne testified inconsistently . . . . I did not present knowingly false testimony.”
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