                               STATE OF WEST VIRGINIA
                             SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                      June 13, 2017
                                                                                   released at 3:00 p.m.
                                                                                 RORY L. PERRY, II CLERK
vs) No. 16-0266 (Jefferson County 13-F-73)                                     SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

Elizabeth Shanton,
Defendant Below, Petitioner


                               MEMORANDUM DECISION


               This is an appeal by Elizabeth Shanton (hereinafter “the Petitioner”), by
counsel Shawn R. McDermott, from a February 23, 2016, order of the Circuit Court of
Jefferson County, West Virginia. The circuit court denied her post-trial motions subsequent
to her conviction, pursuant to jury verdict, of fifteen counts of fraudulent or unauthorized use
of a State Purchase Card (hereinafter “P-Card”) , in violation of West Virginia Code § 12-3­
10b (1996).1 The Petitioner was sentenced to one to five years in the penitentiary, but her
sentence was suspended, and she was placed on supervised probation for five years and
ordered to pay $6,246.43 in restitution. On appeal to this Court, the Petitioner asserts
multiple assignments of error, and the State, by counsel Brandon Sims and Shannon Kiser,
responds to the Petitioner’s assignments of error. Upon consideration of the appendix record,
oral argument of counsel, and applicable precedent, the Court finds no substantial question
of law and no prejudicial error. For these reasons, a memorandum decision affirming the


       1
           The version of West Virginia Code § 12-3-10b controlling this case provided:

               It is unlawful for any person to use a state purchase card, issued in
       accordance with the provisions of section ten-a of this article, to make any
       purchase of goods or services in a manner which is contrary to the provisions
       of section ten-a of this article or the rules promulgated pursuant to that section.
       Any person who violates the provisions of this section is guilty of a felony,
       and, upon conviction thereof, shall be confined in the penitentiary not less than
       one nor more than five years, or fined no more than five thousand dollars, or
       both fined and imprisoned.

                                               1

circuit court’s order is appropriate under Rule 21 of the West Virginia Rules of Appellate
Procedure.

                             I. Factual and Procedural History

              The Petitioner was employed by Shepherd University for approximately fifteen
years. She was most recently designated the Assistant Director of the Student Center,
Director of Commuter Affairs, and Director of Greek Life. In those roles, she was
responsible for student programming, and she purchased items for events such as hospitality
meals, giveaways, door prizes, raffle prizes, domestic violence awareness events, and other
prizes awarded to students for winning various games.2 She was issued a P-Card in
accordance with West Virginia Code § 12-3-10a (1996) and the West Virginia Code of State
Rules and policies promulgated pursuant to that statute.3

              Due to the expensive and multiple purchases made by the Petitioner, her
expenditures were investigated by the Purchase Card Program Oversight Division of the
State Auditor’s Office and the Commission on Special Investigations. The results of the
investigation concluded that the Petitioner had used her P-Card without properly
documenting her purchases, failed to save receipts, failed to itemize purchases, and

       2
         The Petitioner’s brief describes her duties as follows: “[O]ne of Ms. Shanton’s main
job tasks was planning and putting on different events and activities for Shepherd University
students with the goal of providing the students with a rich and rewarding experience outside
of their academic classes.”
       3
        West Virginia Code § 12-3-10a provides authority for the establishment of payment
of claims made through a state purchasing card program, in conjunction with the West
Virginia State Auditor. See also W.Va. C.S.R. § 155-7-1 to -7 (establishing policies and
procedures for state purchasing card). Section 9.2 of the West Virginia State Auditor’s
Office Purchasing Card Policies and Procedures provides:

       Misuse/Abuse is the improper, unlawful or incorrect use, compromise or
       misapplication of the P-Card. Examples include:
       •
       Failure to maintain security protecting your P-Card
       •
       Paying for items in which the P-Card is not authorized for payment
       •
       Purchase of authorized goods or services, at terms (e.g. price, quantity) that are
       excessive

                                               2

purchased items which were not for official university programs; thus, a fifty-four count
indictment was returned against the Petitioner in April 2013. She was charged with one
count of a fraudulent scheme, in violation of West Virginia Code § 61-3-24d (2014),
regarding improper appropriation of over $85,000, and fifty-three counts regarding
fraudulent or otherwise unauthorized purchases the Petitioner allegedly made with the P­
Card.4

              Discovery ensued subsequent to the Petitioner’s indictment. According to the
Petitioner’s brief, the discovery process was quite arduous; her brief to this Court asserts:
“On the more charitable end, the discovery was voluminous and confusing. On the less
charitable end, the discovery was a document and file dump meant to overwhelm, confuse,
and obfuscate.” Much of the discovery was in the form of electronic data; each data disc
apparently contained folders and sub-folders of documents and multiple gigabytes of data.

               Prior to trial, the circuit court granted the Petitioner’s motion to dismiss counts
two through fifty-four, based upon the Petitioner’s assertion that the indictment violated
double jeopardy by charging her with fraudulent scheme and the other separate fifty-three
counts. In response, the State filed a petition for writ of prohibition in this Court seeking to
prohibit enforcement of the dismissal order. This Court granted the writ, as explained in
Lorenzetti v. Sanders, 235 W.Va. 353, 774 S.E.2d 19 (2015), finding that each purchase was
a distinct offense and that the two statutes under which she was charged each contained
elements that the other did not. Thus, this Court found no violation of double jeopardy.

                A ten-day trial was conducted in December 2015. Testimony was extensive
and included the State’s primary witness, Mr. Steve Staton, investigator with the Commission
on Special Investigations. Mr. Staton’s examination continued during almost the entire first
week of trial and concerned his exhaustive investigation into the Petitioner’s expenditures.
The State also presented a witness from the West Virginia State Auditor’s Office (hereinafter
“Auditor’s Office”), Mr. Tim Butler. Several witnesses from Shepherd University also
testified, including the Petitioner’s supervisors, her co-worker in her department, and the
university P-Card coordinator. Through testimony and the introduction of hundreds of
exhibits and thousands of pages of spreadsheets and financial documents, these witnesses

       4
         The jury acquitted the Petitioner on the count of fraudulent scheme, thus obviating
the need for its inclusion as an issue on appeal. The other counts in the indictment included
allegations that the Petitioner purchased items including designer handbags, perfume,
cosmetics, party supplies, wiper blades, platform boots, and underwear with her state-issued
P-Card, between October 2010 and August 2012, allegedly totaling $85,932.67, and failed
to distribute those items to students or otherwise utilize them for authorized purposes.


                                                3

provided insight into the Petitioner’s expenditures, as well as what she characterizes as a
liberal spending policy at Shepherd University. The Petitioner did not testify, but she
presented the testimony of a former student who had received gifts at the Petitioner’s
university-sponsored events. The former student indicated that she had won a raffle for a
Coach basket, which included a Coach purse, Coach bag, Coach scarves, and various other
Coach items.

                The jury returned its verdict on December 15, 2015, finding the Petitioner
guilty of fifteen counts of fraudulent or unauthorized purchases.5 The Petitioner appeals her
convictions, asserting six assignments of error. Those assertions will be addressed
individually in this Court’s discussion below.

                                   II. Standard of Review

               Because each of the Petitioner’s multiple assignments of error addresses
distinct principles of law, this Court will incorporate the applicable standards of review into
the discussion of each separate issue, as necessary.

                                       III. Discussion

                         A. Alleged Brady v. Maryland Violation

             The Petitioner first contends the circuit court “erred in failing to dismiss the
case based upon the State’s Brady violation where the State failed to disclose favorable
exculpatory and impeachment evidence in the possession of the investigating agency for this




       5
         Specifically, Count 11 was a $54.64 purchase at Advance Auto Parts. Count 14 was
a $160.06 purchase at WalMart in Madison, Georgia. Count 17 was a $238.00 purchases of
fragrances at Macy’s East Store in Charleston, West Virginia. Count 18 was a $752.30
purchase at Paper Plus Retail of Halloween costumes and decorations. Count 19 was a $7.40
purchase at Spirit Halloween. Count 27 was a $219.91 purchase at Fansedge.com. Count
28 was a $110.86 purchase at NFLShop.com. Count 36 was a $416.51 purchase at Ulta
Beauty Store. Count 37 was a $1,439.70 United Airlines first class ticket purchase. Counts
39, 40, and 41 were limousine services in New York City. Count 46 was a $752.33 purchase
from Sephora. Counts 51 and 52 were hotel rooms at the Marriott in New York City. In
total, the Petitioner was convicted of purchasing $5,016.41 worth of “personal purchases”
and $1,753.06 in purchases that were deemed to be at “excessive” prices.

                                              4

prosecution, the West Virginia State Auditor’s Office[.]”6 Specifically, the Petitioner asserts
the State should have disclosed the existence of files from the Auditor’s Office containing
individual audits on some of her purchases and materials regarding an audit of Shepherd
University.

              In syllabus point eight of State v. Black, 227 W.Va. 297, 708 S.E.2d 491
(2010), this Court explained:

                     “There are three components of a constitutional due
              process violation under Brady v. Maryland, 373 U.S. 83, 83
              S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169
              W.Va. 191, 286 S.E.2d 401 (1982): (1) the evidence at issue
              must be favorable to the defendant as exculpatory or
              impeachment evidence; (2) the evidence must have been
              suppressed by the State, either willfully or inadvertently; and (3)
              the evidence must have been material, i.e., it must have
              prejudiced the defense at trial.” Syllabus Point 2, State v.
              Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).

              Although the Petitioner contends that the individual audits allegedly performed
by the Auditor’s Office were suppressed by the State, she asserted in the circuit court that
Brady evidence “was disclosed and hidden in all the discovery.” She also asserted at trial
that there was “remaining Brady evidence that has not yet been disclosed. . . .” On appeal,
she alleges that individual audits would have constituted evidence that her purchases were
deemed to be legitimate at the time that they were made.7

              The State counters these arguments with the assertion that the Petitioner had
access to these materials and that a Brady violation can not exist where the defendant is in
possession of the allegedly exculpatory material and even used it to her benefit at trial.8


       6
       See Brady v. Maryland, 373 U.S. 83 (1963) (describing requirement for disclosure
of exculpatory evidence).
       7
       The Petitioner argues that independent review and approval by Shepherd University
would constitute exculpatory evidence and would also impeach the credibility of the State’s
witnesses regarding the level of oversight by Shepherd University.
       8
       The Petitioner used some of the data from the forensic examination files at trial to
successfully argue that her November 29, 2011, purchase of Coach merchandise was
                                                                                    (continued...)

                                              5

Further, the State contends that no additional evidence of individual audits or other data
exists; moreover, the State explains that the materials characterized by the Petitioner as
“individual audits” were simply matters of routine monitoring by the Auditor’s Office, as a
part of its role in conducting normal monitoring of the P-Card program generally.

                The Petitioner has articulated her reasoning on the first prong of the test for a
Brady violation;9 she has asserted that the evidence she believes exists could have possessed
exculpatory or impeachment value. As the State asserts, however, the Petitioner has not
established either of the remaining two prongs. The second prong requires the Petitioner to
demonstrate that evidence was suppressed, either willfully or inadvertently, by the State. See
Youngblood, 221 W.Va. at 28, 650 S.E.2d at 157. The Petitioner’s argument on this issue
is very convoluted, and the State emphasizes numerous inconsistencies in the Petitioner’s
argument. For instance, although the Petitioner’s counsel acknowledged at trial that he had
thought he possessed all the data underlying the forensic analysis performed on the
Petitioner’s computers, phones, and flash drives, he requested that data again one week
before jury selection began, explaining via email that “[f]or some reason, I can no longer find
the disc of the digital forensic analysis. . . . Do you have another copy that you can send
me?” The State provided the forensic information disc and report, and that report contains
a handwritten notation that shows the document was carbon copied to the Petitioner nearly
two years prior to trial. The record is simply unclear regarding whether some of the evidence
at issue was previously overlooked by the Petitioner’s counsel or was contained in the
voluminous discovery. As the State asserts in its brief, “neither counsel could confirm or
deny that the information was previously provided.” This Court is unable to speculate10 upon
the existence of data not provided to the Petitioner, and we find that the Petitioner has failed
to satisfy the requirement to demonstrate suppression.


       8
           (...continued)
legitimate, based upon approval of the purchase by Shepherd University and the Auditor’s
Office. She was acquitted on the charges regarding improper purchases of Coach
merchandise.
       9
           See Youngblood, 221 W.Va. at 28, 650 S.E.2d at 157.
       10
        See Com. v. Willis, 46 A.3d 648, 650 (Pa. 2012) (“Mere speculation by a defendant,
however, will not be sufficient to meet this standard; rather, he must identify specific
evidence or information that would have been uncovered, and explain how that evidence or
information would have changed the result of the proceeding.”); Com. v. McGill, 832 A.2d
1014, 1019-20 (Pa. 2003) (“McGill has failed to establish that there was any evidence to
suppress, let alone that the Commonwealth willfully or inadvertently suppressed it.”).


                                               6

               Moreover, even if suppression by the State had been proven, the final prong
of the requirements for a Brady violation mandates that the Petitioner demonstrate how she
was prejudiced. This Court’s review of the record reveals a failure to articulate precisely
what evidence was allegedly suppressed, whether such evidence even existed, and how the
Petitioner was prejudiced. A Brady claim can not be premised upon speculation. See Banks
v. Reynolds, 54 F.3d 1508, 1518 (10th Cir. 1995) (“‘The mere possibility that evidence is
exculpatory does not satisfy the constitutional materiality standard.’” (citations omitted));
Overton v. State, 976 So. 2d 536, 562 (Fla. 2007) (holding Brady claim based on alleged
notes from police brainstorming sessions regarding suspects was merely speculative and
defendant’s “argument that additional reports with exculpatory information were generated
is based on pure speculation, which is insufficient to establish a Brady violation.”); Wright
v. State, 857 So.2d 861, 870 (Fla. 2003) (finding no Brady violation where exculpatory effect
of disputed documents merely speculative); Gore v. State, 846 So.2d 461, 466-67 (Fla. 2003)
(holding Brady claim insufficiently pled where defendant presented no factual basis for
assertion that disputed item ever existed or contained exculpatory information). Upon
thorough review of this matter, we find that the Petitioner has failed to establish a Brady
violation; we consequently find no merit to her assignment of error on this issue.

              B. Alleged False Testimony Before the Grand and Petit Juries

               The Petitioner also contends the circuit court should have dismissed this case
based upon the State’s alleged solicitation of false testimony from witnesses at the grand jury
and petit jury levels. In particular, the Petitioner alleges that Mr. Staton tainted the grand
jury by presenting false and misleading testimony indicating that the Petitioner did not
provide certain gifts to students. The evidence at trial, however, revealed that students did
receive some items purchased by the Petitioner. On cross-examination, Mr. Staton also
admitted he had not personally interviewed the students who attended the Petitioner’s
university-sponsored events, had not sought a search warrant for her vehicle or residence, and
had not otherwise found any of the purchased items in her possession. The evidence
presented by the Petitioner also identified emails between Mr. Staton and Shepherd
University’s general counsel regarding the existence of students who had received various
prizes from the Petitioner. In response to the Petitioner’s assertions in this assignment of
error, the State asserts that inconsistencies in grand jury testimony, later clarified and
developed at trial, do not constitute false testimony warranting reversal.11



       11
         The State emphasizes that while the Petitioner alleges “false” testimony with regard
to counts 2, 4, 5, 10, 12, 13, 17, 23, 25, 26, 36, 46, 49 and 50, she was convicted of only three
of those fourteen counts.

                                               7

              This Court has encountered myriad arguments by criminal defendants seeking
to challenge the validity of grand jury indictments on the basis of allegedly incompetent or
false evidence. As this Court noted in State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383
S.E.2d 844 (1989), “[t]his contention, however, often runs counter to the function of the
grand jury, which is not to determine the truth of the charges against the defendant, but to
determine whether there is sufficient probable cause to require the defendant to stand trial.”
Id. at 665, 383 S.E.2d at 847 (internal citations omitted). As identified in Pinson, “the
question before this Court is whether the defendant made a prima facie case that such fraud
occurred before this grand jury.” ld.

               In the syllabus of Barker v. Fox, 160 W.Va. 749, 238 S.E.2d 235 (1977), this
Court also observed: “Except for willful, intentional fraud the law of this State does not
permit the court to go behind an indictment to inquire into the evidence considered by the
grand jury, either to determine its legality or its sufficiency.”

                Based upon this Court’s review of the record and arguments of counsel, we
find that the Petitioner has failed to establish that any testimony before the grand or petit jury
constituted willful and intentional fraud. Any discrepancies in testimony, at either the grand
or petit jury levels, on the issue of how many students may have received items purchased
by the Petitioner could have been fully explored during cross-examination. See United States
v. Lombardozzi, 491 F.3d 61, 80 (2d Cir. 2007) (“Finally, even if we were to find that the
grand jury indictment was defective, all of the discrepancies between [an investigator’s]
grand jury testimony and the evidence at trial were submitted to the petit jury which found
Lombardozzi guilty beyond a reasonable doubt. It is well settled that a guilty verdict at trial
‘remedies any possible defects in the grand jury indictment.’”); Pinson, 181 W.Va. at 667,
383 S.E.2d at 849 (approving reasoning “that errors before a grand jury, such as perjured
testimony, could easily be corrected during a trial with its incumbent procedural and
evidentiary safeguards.”). Based upon the foregoing, we find no merit to the Petitioner’s
argument regarding false or misleading testimony.

                                  C. Evidence of “Blending”

               The Petitioner also alleges error in the circuit court’s decision to permit
testimony from a State witness, Mr. Butler, regarding the practice of “blending,” in which
an individual attempts to conceal inappropriate purchases by combining them with legitimate
purchases. The Petitioner contends the introduction of this evidence constituted the
inappropriate debut of a new and previously-undisclosed theory of fraud, not addressed in
the indictment. She contends this created a prejudicial variance between the evidence
presented at trial and the indictment.


                                                8

                The practice of “blending” was included in the testimony of Mr. Butler in
response to questions regarding what “kinds of transactions . . . would alert you there could
be fraudulent activity on a cardholder’s account.” By way of explanation of identifying
potential instances of fraud, Mr. Butler, a certified public accountant and fraud examiner,
testified that blending is a term used “to describe purchasing activity that may include or we
have reason to believe includes both legitimate business related purchases and expenditures
mixed in with what is later found to be purchases that were of a personal nature.” That
concept of “blending” had not been discussed prior to that point in trial and did not appear
within the indictment. Thus, the Petitioner contends that she was prejudiced by this type of
“expert” testimony and the resulting “variance” between the indictment and the evidence
presented at trial. She also argues that she had “belabor[ed] under that apparent
misimpression . . . that [she] was charged with the entirety of each purchase in the Indictment
being illegal.”

              The State asserts that the circuit court was clearly within its discretionary
power to determine the admissibility of this evidence. See Syl. Pt. 5, State v. Davis, 232
W.Va. 398, 752 S.E.2d 429 (2013) (internal quotes and citations omitted) (“Rulings on the
admissibility of evidence are largely within a trial court’s sound discretion and shou1d not
be disturbed unless there has been an abuse of discretion.”). Moreover, the State argues that
Mr. Butler was not introduced as an expert and was merely testifying based upon his history
of fraud investigations.12

               Upon the Petitioner’s objection to Mr. Butler’s testimony on “blending,” the
circuit court reasoned as follows:

                     So, the fact that an accountant would get up and describe
              almost as a person would attack a blending of fiduciary funds,
              or a commingling of accounts, that a person in a position to
              make purchases might not dedicate all of those things purchased
              to a legitimate, only some, frankly, doesn’t seem surprising
              under the evidence.

                     It doesn’t seem like a technical or expert opinion. It
              seems more of a sort of common sense conclusion of a
              possibility that could exist. . . .



       12
        The State also asserts that even if Mr. Butler had been introduced as an expert, the
admission of his testimony would have been within the sound discretion of the trial court.

                                              9

                The Petitioner cites State ex rel. Day v. Silver, 210 W.Va. 175, 556 S.E.2d 820
(2001), for the proposition that allegations must be specifically asserted in the indictment,
and she contends introduction of the concept of the “blending” legitimate purchases with
unauthorized purchases was a prejudicial variance between trial evidence and the indictment.
 In Silver, this Court held that an indictment on larceny charges is sufficient if it identifies
with “specificity the particular items of property which are the subject of the charge by
specifically describing said property. . . .” Id. at 177, 556 S.E.2d at 822, syl. pt. 5. In
syllabus point seven of State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982), we
explained that “[t]he variance between the indictment and the proof is considered material
where the variance misleads the defendant in presenting his defense to the charge and
exposes him to the danger of being put in jeopardy again for the same offense.” See also
State v. Crowder, 146 W.Va. 810, 836, 123 S.E.2d 42, 57 (1961).

              In similar vein, this Court held in pertinent part of syllabus point six of State
v. Corra, 223 W.Va. 573, 678 S.E.2d 306 (2009): “If the proof adduced at trial differs from
the allegations in an indictment, it must be determined whether the difference is a variance
or an actual or a constructive amendment to the indictment.” Where a defendant is “not
misled in any sense, is not subjected to any added burden of proof, and is not otherwise
prejudiced, then the difference between the proof adduced at trial and the indictment is a
variance which does not usurp the traditional safeguards of the grand jury.” Id.

               The alleged variance in this case relates only to the introduction of testimony
regarding the potential for fraudulent use of a P-Card, in a manner that combines legitimate
purchases with fraudulent ones. This Court is unconvinced that the absence of mention of
the blending concept in the indictment misled the Petitioner, subjected her to additional
burdens of proof, or otherwise prejudiced her. This case is markedly different from a
situation such as that encountered in Corra, in which this Court reversed a conviction where
the defendant had been indicted for “furnishing alcoholic liquor” but was convicted of the
entirely different crime of “furnishing nonintoxicating beer.” Id. at 576, 678 S.E.2d at 309.
In that case, we found the “variation between the indictment and the evidence . . . destroyed
defendant’s substantial right to be tried only on charges presented in an indictment returned
by a grand jury.” Id. As we specified in Corra, however, “not every variation between an
indictment and proof at trial creates reversible error.” Id.

              The evidence of “blending” in this case was presented by way of explanation
of how some of the allegedly fraudulent purchases could have been made. However, the
Petitioner was clearly apprised of the allegations against her in the indictment, and she had
ample opportunity through the trial process to cross-examine witnesses with regard to the
allegations against her. The introduction of the concept of blending does not create a
variance with the indictment; blending is merely a manner in which the purchases could have

                                              10

been accomplished. A minimal difference between the language utilized in the indictment
and the concepts evaluated at trial is not fatal to the State’s case. We consequently find no
merit to the Petitioner’s claims on this issue.

                                      D. Instructional Error

               The Petitioner also contends the circuit court erred in providing a jury
instruction allowing the jury to convict if it found that she made purchases at an “excessive”
price. The jury instruction provided:

                        Before the Defendant, Elizabeth A. Libby Shanton, can
                 be convicted of fraudulent or unauthorized use of a purchasing
                 card by purchasing unauthorized items at excessive terms, prices
                 or quantities, as charged in each of Counts 37, 39, 40 & 41; the
                 State of West Virginia must for each of these counts overcome
                 the presumption that the Defendant, Elizabeth A. Libby
                 Shanton, is innocent and prove to the satisfaction of the jury
                 beyond a reasonable doubt that . . .[the Petitioner used] her state
                 issued purchasing card . . . [t]o make a purchase . . . [f]or
                 unauthorized goods or services at terms of price or quantity that
                 the Defendant knew were excessive.

               This instruction13 was premised upon the policy prohibiting purchases of
“authorized goods or services, at terms (e.g. price, quantity) that are excessive” and was
discussed by the circuit court and counsel prior to its submission to the jury. Although
counsel for the Petitioner did not offer a modification of the instruction or an alternative
instruction,14 counsel did object to the instruction based upon the absence of any “definition

       13
        This issue specifically concerns Counts 37, 39, 40, and 41 of the Indictment,
charging the Petitioner with the unlawful purchase of a first-class airline ticket; a New York
limousine service for $99.82; a New York limousine service for $99.00; and a New York
limousine service for $114.54.
       14
            An alternative instruction could have been offered by the defense.

       An instruction offered by the defense should be given if the proposed
       instruction: (1) is substantively correct, (2) is not covered substantially in the
       charge actually delivered to the jury, and (3) involves an important issue in the
       trial so the trial court’s failure to give the instruction seriously impairs the
                                                                                       (continued...)

                                                 11

in the rules or anywhere else what excessive is” and “the subjective nature of it and also the
fact that the violation as being excessive is not mentioned in the indictment in any
specification.” The Petitioner also argues that the State, for the first time at trial, disclosed
that Counts 37, 39, 40, and 41were premised on the theory that she had made some legitimate
purchases at an “excessive” price, thus violating the regulations regarding usage of the P­
Card.15

               First, we note that usage of a potentially subjective term does not necessarily
render an instruction invalid. Employment of abstract words such as “habitual,” “repeated,”
and “excessive” in a county’s animal noise control ordinance, for instance, was upheld in

       14
            (...continued)

       defendant’s ability to effectively present a defense.


State v. Hinkle, 200 W.Va. 280, 285, 489 S.E.2d 257, 262 (1996) (citing State v. Derr, 192
W.Va. 165, 180, 451 S.E.2d 731, 746 (1994)). As explained in Triton Coal Co., Inc. v. Mobil
Coal Producing, Inc., 800 P.2d 505 (Wyo. 1990),

       It is the duty of the attorneys in each case to determine which legally
       acceptable instruction best presents the client’s case. Neither the judge, nor
       the appellate court, has the appropriate perspective to make such a decision.
       Even if they did understand the case better than the attorney presenting it, their
       role prohibits them from urging one instruction over another providing both
       are legally sound. Thus, unless an instruction can be said to have plainly
       caused a fundamental prejudice to the defendant’s legal rights, we will not
       overturn it on appeal unless it was objected to during the trial and a proper
       instruction was offered in its place.

Id. at 512 (citation omitted and emphasis added).
       15
         This Court rejects the Petitioner’s contention regarding a material variance between
the indictment and the evidence on this issue for the same reasons we rejected her similar
contention regarding the inclusion of testimony regarding blending. We find no basis for a
conclusion that she was misled, subjected to an added burden of proof, or was otherwise
prejudiced by inclusion of the concept of excessive purchases. The indictment on counts 37,
39, 40, and 41 clearly charged the Petitioner with purchasing “in a manner contrary to the
provisions of law. . . .” Purchase of “authorized goods or services, at terms (e.g. price,
quantity) that are excessive” was clearly identified as improper by Section 9.2 of the West
Virginia State Auditor’s Office Purchasing Care Policies and Procedures, as quoted in its
entirety above.

                                               12

State v. Taylor, 495 S.E.2d 413 (N.C. Ct. App. 1998), and did not render the ordinance
unconstitutionally vague or indefinite. Id. at 415. The court found such “words have through
their daily use become meaningful so that average person should have sense of what is
prohibited.” Id. As this Court has repeatedly explained, reasonable certainty is sufficient in
criminal statutes. “A criminal statute must be set out with sufficient definiteness to give a
person of ordinary intelligence fair notice that his contemplated conduct is prohibited by
statute and to provide adequate standards for adjudication.” Syl. Pt. 1, State v. Flinn, 158
W.Va. 111, 208 S.E.2d 538 (1974).

                Moreover, “the question of whether a jury was properly and adequately
instructed is a question of law, and, thus, our review is de novo.” State v. Hinkle, 200 W.Va.
280, 285, 489 S.E.2d 257, 262 (1996). In examining an instruction, this Court is not charged
with the task of determining whether the charge “was faultless in every particular but
whether the jury was mislead [sic] in any way and whether it had an understanding of the
issues and its duty to determine those issues.” Id. “Jury instructions are reviewed by
determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they
understood the issues involved and were not misled by the law. A jury instruction cannot be
dissected on appeal; instead, the entire instruction is looked at when determining its
accuracy.” State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995).

              In this case, the jury was instructed regarding the State’s burden of proof and
was precisely informed that the State must prove all allegations beyond a reasonable doubt.
We find “the instructions as a whole, in light of all the evidence in the case, were sufficient
to afford due process under the standard by which we review alleged instructional error.”
State v. LaRock, 196 W.Va. 294, 309, 470 S.E.2d 613, 628 (1996).

               Significantly, the Petitioner’s assignments of error on appeal do not challenge
the sufficiency of the evidence of the “excessiveness” or reasonableness of her purchases; she
simply asserts instructional error in permitting the jury to deliberate upon what she
characterizes as the vague, subjective concept of “excessiveness.” Nor does either party
direct this Court toward any problematic trial testimony squarely addressing the excessive
nature of the Petitioner’s purchases.16 With regard to the purchase of the first class airline
ticket, however, we note that State’s Exhibit Number Sixty indicates that a first class ticket
from Baltimore, Maryland, to Ontario, California, was purchased by the Petitioner for


       16
        If the Petitioner found fault with any particular trial testimony regarding the issue
of excessiveness of her purchases, she should have cited those passages to this Court.
“Judges are not like pigs, hunting for truffles. . . .” United States v. Dunkel, 927 F.2d 955,
956 (7th Cir.1991).

                                              13

$1,439.70. Mr. Staton testified that a first class ticket was not considered to be a permissible
state purchase. Mr. Staton was thereafter cross-examined on the issue of the first class ticket
purchase and whether it was directly authorized by the Petitioner’s supervisors. Similarly,
Mr. Staton was cross-examined regarding his findings on the issue of the Petitioner’s
purchases of limousine services, and evidence was adduced regarding the base rates for
transportation services in comparison with the purchases made by the Petitioner. The State
argued before the jury that the Petitioner’s purchase of a first-class airline ticket and
limousine services rather than taxis on three separate occasions was excessive.

               Even if the Petitioner had included an assignment of error challenging the
sufficiency of the evidence on the issue of what could be considered “excessive,” as opposed
to reasonable or warranted, we have consistently recognized the substantial difficulties
inherent in challenging a conviction based upon sufficiency of the evidence. In syllabus
point five of State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996), for instance, this
Court stated:

                     “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).

We find no merit in the Petitioner’s assignment of error regarding the instruction on alleged
excessive purchases.

                         E. Unconstitutional Vagueness of Statute

              The Petitioner also argues the statute regarding fraudulent use of a P-card is
unconstitutionally vague on its face and as applied to this case. As quoted above, West
Virginia Code § 12-3-10b provided:

                                              14

                      It is unlawful for any person to use a state purchase card,
              issued in accordance with the provisions of section ten-a of this
              article, to make any purchase of goods or services in a manner
              which is contrary to the provisions of section ten-a of this article
              or the rules promulgated pursuant to that section. Any person
              who violates the provisions of this section is guilty of a felony,
              and, upon conviction thereof, shall be confined in the
              penitentiary not less than one nor more than five years, or fined
              no more than five thousand dollars, or both fined and
              imprisoned.

The Petitioner contends the statute “does not provide a person of ordinary intelligence fair
notice of what conduct is prohibited. . . .” She also contends the P-Card standards are an
“incomprehensible jumble of laws.”

               In syllabus point one of State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137
(2008), this Court stated that “[t]he constitutionality of a statute is a question of law which
this Court reviews de novo.” As this Court noted in State v. James, 227 W.Va. 407, 710
S.E.2d 98 (2011), a reviewing court must proceed cautiously when evaluating a constitutional
challenge because a statute “is presumed to be constitutional.” Id. at 413, 710 S.E.2d at 104;
see also State v. Yocum, 233 W.Va. 439, 447, 759 S.E.2d 182, 190 (2014). Additionally, in
syllabus point three of Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967), this Court
explained that “[w]hen the constitutionality of a statute is questioned every reasonable
construction of the statute must be resorted to by a court in order to sustain constitutionality,
and any doubt must be resolved in favor of the constitutionality of the legislative enactment.”

               Although this Court did not specifically address the constitutionality of West
Virginia Code § 12-3-10b in Lorenzetti, we did find the statute unambiguous. 235 W.Va. at
361, 774 S.E.2d at 27. As set forth above, a statute is to be enunciated with sufficient
definiteness to provide fair notice of what prohibited conduct is contemplated by the statute.
The statute at issue herein adequately informed the Petitioner of what actions would be
considered criminal in nature. We find no merit to the Petitioner’s assertions of
unconstitutional vagueness.

                                F. Sufficiency of Indictment

              As a final assignment of error, the Petitioner alleges the circuit court erred in
denying her motion to dismiss the indictment for insufficiency. Syllabus point six of State
v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999), provides guidance on the issue of
sufficiency of an indictment:

                                               15

                     An indictment is sufficient under Article Ill, § 14 of the
              West Virginia Constitution and W. Va. R. Crim. P. 7(c)(1) if it
              (1) states the elements of the offense charged; (2) puts a
              defendant on fair notice of the charge against which he or she
              must defend; and (3) enables a defendant to assert an acquittal
              or conviction in order to prevent being placed twice in jeopardy.


               The Petitioner contends the indictment in this case failed to place her on fair
notice of the charges against her, and she freely admits that she is attempting to “renew[] her
argument submitted to this Court in response to the State’s writ of prohibition” in Lorenzetti.
We find no merit to the Petitioner’s contentions and her attempts to resuscitate her prior
unsuccessful arguments. This Court made it abundantly clear in Lorenzetti that the
indictment is sufficient. 235 W.Va. at 365 n.9, 774 S.E.2d at 30 n.9.

                                       IV. Conclusion

              This Court’s review of this matter reveals no reversible error. We consequently
affirm the judgment of the Circuit Court of Jefferson County.

                                                                                    Affirmed.




                                              16

