                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                    May 15, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0433 (Wood County 13-F-55)                                          OF WEST VIRGINIA


Crystal Dawn Smith,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
       Petitioner Crystal Dawn Smith, by counsel Travis Sayre, appeals the April 3, 2014,
sentencing order of the Circuit Court of Wood County following her conviction for conspiracy to
commit concealment of a deceased human body. Respondent the State of West Virginia, by
counsel Shannon Frederick Kiser, filed its response.

        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 is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In 2012, petitioner was arrested and charged with concealment of a deceased human body
and conspiracy to commit the same related to the body of Brandy Adams. The report from the
medical examiner lists the cause of death as accidental due to the ingestion of illegal bath salts
and other drugs. Several men were involved in leaving Ms. Adams’s body in a car wash bay
where it was found within hours.1 There is a dispute as to whether petitioner knew that the men
were disposing of the body and what involvement petitioner had in the disposal of Ms. Adams’s
body.

        Petitioner was tried before a jury beginning on August 27, 2013. She was found guilty of
conspiracy to commit concealment of a deceased human body, a felony. By order dated October
30, 2013, she was sentenced to the custody of the West Virginia Division of Corrections for a
term of imprisonment of one to five years, with a credit of 425 days. Based upon the presentence
investigation report, the report of the probation officer, and petitioner’s motion for probation or
alternative sentencing, the circuit court denied petitioner’s motion for probation but granted her
motion for alternative sentencing. She was ordered to serve her sentence through the Wood

       1
         Mr. Arthur Thornton testified that he pled guilty to conspiracy to commit concealment
of a deceased human body, specifically that of Ms. Adams’s body. However, the record is
unclear as to whether the others were charged with crimes related to this incident.
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County Home Confinement Program under the conditions set forth in that order. Petitioner was
also ordered to pay certain sums to the clerk of the court. Because petitioner indicated that she
wished to appeal, the circuit court appointed appellate counsel, Travis Sayre. Petitioner was
resentenced, presumably for purposes of appeal, by order entered April 3, 2014. She now appeals
from that order.

        We have previously held that we review “‘sentencing orders . . . under a deferential abuse
of discretion standard, unless the order violates statutory or constitutional commands.’ Syl. pt. 1,
State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, in part, State ex rel.
Rubenstein v. Bloom, No. 14-1043, 2015 WL 1716825, at *1 (W.Va. March 17, 2015).

        On appeal, petitioner asserts two assignments of error. First, she contends that the circuit
court erred in not granting her motion for judgment of acquittal tendered at the end of the State’s
case-in-chief.2 Her second assignment of error is that the circuit court erred in denying her
motion for a judgment of acquittal at the end of petitioner’s case-in-chief and in denying her
motion for a new trial. With regard to both motions for judgment of acquittal, petitioner argues
that her conviction should be overturned because the underlying charge of concealment of a
deceased body is ambiguous and cannot be proven. She further argues that the element of
criminal activity in West Virginia Code § 61-2-5a is too broad and should be narrowed.
Petitioner also contends that the State failed to prove that the deceased died due to criminal
activity, which she claims is the primary element of the offense against the State. Petitioner
admits that Ms. Adams died as the result of an illegal drug overdose, which she concedes is
criminal activity. However, she relies on the fact that neither she nor her co-defendants directly
caused Ms. Adams’s death. She asserts that the legislature only intended West Virginia Code §
61-2-5a(a) to apply to murder, voluntary manslaughter, and involuntary manslaughter, so this
Court should narrow the statute accordingly. We disagree.

       We have long held that

       [t]he trial court's disposition of a motion for judgment of acquittal is subject to our
       de novo review; therefore, this Court, like the trial court, must scrutinize the
       evidence in the light most compatible with the verdict, resolve all credibility
       disputes in the verdict's favor, and then reach a judgment about whether a rational
       jury could find guilt beyond a reasonable doubt.

State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996). Further, we have recognized
that “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute
should not be interpreted by the courts, and in such case it is the duty of the courts not to
construe but to apply the statute.” Syl. Pt. 5, Liberty Mut. Ins. Co. v. Morrisey, __ W.Va. __, 760
S.E.2d 863 (2014) (quoting Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W.,

       2
          Both during trial and in her argument to this Court, petitioner refers to her motion as
one for a directed verdict. However, as set forth in Rule 29 of the West Virginia Rules of
Criminal Procedure, “[m]otions for directed verdict are abolished and motions for judgment of
acquittal shall be used in their place.” Therefore, we refer to the same as a motion for judgment
of acquittal.
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144 W.Va. 137, 107 S.E.2d 353 (1959)). It should, however, be noted that we have held that “[a]
statute, or an administrative rule, may not, under the guise of ‘interpretation,’ be modified,
revised, amended or rewritten.” Syl. Pt. 8, Liberty Mut. Ins. Co. (quoting Syl. Pt. 1, Consumer
Advocate Div. v. Pub. Serv. Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989)).

       West Virginia Code § 61-2-5a(a) provides that

       [a]ny 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
       and, upon conviction thereof, shall be confined in a correctional facility for not
       less than one year nor more than five years and fined not less than one thousand
       dollars, nor more than five thousand dollars.

Petitioner contends that the Legislature’s intent is not clear in the plain language of the statute. In
support of this assertion, she points to the notation in the House Bill that the draft statute was
prepared “to create a crime for concealing a human body of a victim of a murder, voluntary
manslaughter, or involuntary manslaughter.” Petitioner’s argument ignores the fact that the
Legislature chose to change the language of the statute to encompass all “criminal activity.”
Because the language of the statute clearly and unambiguously includes all “criminal activity,”
this Court will not modify or rewrite the statute to limit it to murder, voluntary manslaughter, or
involuntary manslaughter, as requested by petitioner.

        As evidenced by the report from the Office of the Chief Medical Examiner, and as
petitioner concedes, Ms. Adams died as the result of the ingestion of illegal bath salts and other
drugs. At trial, the State presented evidence that proved that Ms. Adams used bath salts, heroin,
codeine, and other narcotics before her death. The plain meaning of “criminal activity” includes
the illegal use of bath salts and narcotics. Therefore, we find that the circuit court did not err in
denying petitioner’s first motion for judgment of acquittal.

       Petitioner next argues that her conviction should be overturned because the State failed to
prove a conspiracy under West Virginia Code § 61-10-31, so she was entitled to the grant of her
second motion for judgment of acquittal and/or a new trial. She correctly asserts that “[i]n order
for the State to prove a conspiracy under W.Va. Code, 61-10-31(1), it must show that the
defendant agreed with others to commit an offense against the State and that some overt act was
taken by a member of the conspiracy to effect the object of that conspiracy.” Syl. Pt. 4, State v.
Less, 170 W.Va. 259, 294 S.E.2d 62 (1981). Petitioner claims that the State provided no
evidence to show that she knew about Ms. Adams’s body until after it was discovered by the
police and that the evidence shows that petitioner, at most, helped move a car without the
knowledge of its contents. She asserts that her statements, provided voluntarily to police on
September 21 and 27, 2012, contained no admissions that petitioner had knowledge of the
deceased body.

              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

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       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).

Syl. Pt. 2, State v. Seen, No. 14-0173, 2015 WL 1721012 (W.Va. April 10, 2015). As we found
in Less, the agreement to commit a conspiracy “may be inferred from the words and actions of
the conspirators, or other circumstantial evidence, and the State is not required to show the
formalities of an agreement.” 170 W.Va. at 265, 294 S.E.2d at 67 (citing American Tobacco Co.
v. United States, 328 U.S. 781 (1946)). Further, “[i]t is not necessary that each conspirator
involved in the conspiracy commit his or her own overt act. The overt act triggering the
conspiracy as to all the conspirators can be committed by any one of their number.” Less, 170
W.Va. at 265, 294 S.E.2d at 67 (citing Bannon v. United States, 156 U.S. 464 (1895)).

        In the instant case, the State introduced the testimony of several witnesses who indicated
that after they discovered that Ms. Adams had died, everyone at the location was visibly upset,
including petitioner. The testimony also established that petitioner and her co-conspirators knew
that Ms. Adams was dead, petitioner drove Ms. Adams’s car to the car wash, and petitioner
refused to be forthright with that information until specifically questioned by police. Petitioner’s
statements to police generally established that she knew that she was transporting Ms. Adams’s
body but had convinced herself that she was not, in part because petitioner also used illegal bath
salts during the time in question. The jury heard the testimony from the witnesses and examined
the evidence and weighed the credibility of the same. Based on the record before this Court, we
find that petitioner has failed to carry her heavy burden in challenging the sufficiency of the
evidence. Therefore, we find that the circuit court did not err in denying petitioner’s second
motion for judgment of acquittal or her motion for a new trial.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: May 15, 2015

CONCURRED IN BY:

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



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