                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


State of West Virginia,                                                             FILED
Plaintiff Below, Respondent                                                     April 24, 2015
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 13-1312 (Webster County 13-F-13)                                        OF WEST VIRGINIA


Amanda York,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Amanda York, by counsel Daniel R. Grindo, appeals the order of the Circuit
Court of Webster County, entered November 14, 2013, that denied her motion for a new trial and
sentenced her to a term of incarceration following her conviction on three counts of voluntary
manslaughter and one count of conspiracy to conceal a deceased human body. Respondent, the
State of West Virginia, by counsel Christopher S. Dodrill, filed a response in support of the
circuit court’s order.

        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 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.

        On June 27, 2012, petitioner and an acquaintance, Denise Coates, quarreled. Later that
afternoon, Denise Coates, Lamar Allen, and Dustin Brown drove to the residence of petitioner
and her husband, Michael York. At some point after the three visitors arrived, petitioner’s
husband went inside his residence, retrieved a four-round .30-06 rifle, and returned outside. He
then shot Lamar Allen in the chest, shot Denise Coates once in the chest and twice in the back,
and shot Dustin Brown once in the side and twice in the back. Petitioner’s husband reloaded his
four-round rifle at least once during the shootings. All three victims died at the scene. Thereafter,
petitioner and her husband attempted to conceal Dustin Brown’s body by tying it to the back of
an all-terrain vehicle with an extension cord and dragging it up a hill. However, the plan failed
when the extension cord broke. Petitioner’s husband then fled the scene in his car.

        After her husband left the scene, petitioner called 911 and told the authorities, “I shot
some people. . . .Yeah they were coming in and I couldn’t stop ‘em and it was me and the baby
here.” The 911 operator contacted the police and then called petitioner to check on her and her
child, and to let her know that police officers were on their way. During this second call, the 911
operator asked petitioner whether she had a gun during the shootings. Petitioner replied, “Yes I
had a gun when I, I came out of the house.”


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         Petitioner made two more statements to police after they arrived at her house. During the
first of these statements, petitioner said she had been in an altercation with Denise Coates earlier
in the day:

       Okay well I was over at our friends . . . , me and my husband and my daughter
       were. And we were visiting. And[,] all of a sudden Denise [Coates] came over ah,
       she was getting something . . . . Um, and she just started going off at me. And I
       mean just right up in my face and in my husband’s face and I kept telling her to
       just go, we’re not fighting, this is a friends, and ya, da, ya, and I didn’t think any
       more about it you know when I came home I was just thinking why were they
       mad at me in the first place.

Petitioner added that when the three victims arrived at her home, she and her five-year-old
daughter were home alone and she feared for their safety so she grabbed a .30-06 rifle,
confronted the victims outside her home, and shot them in self-defense. However, during
petitioner’s second statement to the police, she admitted that her husband had been the shooter
and that she had stood behind him during the shooting.

        Petitioner’s husband was arrested late on the night of the shootings. When questioned, he
told the police that, “My wife never did nothing. I shot those people. Let my wife go.” He also
admitted that petitioner was armed with a shotgun when he shot the victims.

        On January 16, 2013, petitioner was indicted on three counts of murder in the first degree
in violation of West Virginia Code § 61-2-1, one count of concealment of a deceased human
body in violation of West Virginia Code § 61-2-5a, one count of conspiracy to commit murder in
violation of West Virginia Code § 61-10-31, and one count of conspiracy to conceal a human
body in violation of West Virginia Code § 61-10-31.

        Although the murders occurred in Webster County, the trial was moved to Braxton
County when attempts to seat a jury in Webster County failed. Petitioner and her husband were
tried together. During a break in their five-day trial in September of 2012, the trial judge saw a
juror assigned to the case, Lana Bowman, speak to one of the State’s witnesses, Deputy Jack
Cutlip, in the hallway of the courthouse. After the break, the judge informed the parties that,

       As I was leaving the courthouse for lunch, I observed one of our jurors—I don’t
       even know the juror’s name, having a conversation with the witness, [Deputy]
       Jack Cutlip. It appeared to me, just from my observations, that [Juror Bowman]
       initiated the conversation. I didn’t hear anything other than, “Are you related to
       Rick Cutlip” or words to that effect and I walked up to the juror and said, “You’re
       a juror on this case?” She said, “Yes.” I said, “You’re not supposed to be having
       any conversations with the witness.” She said, “Well, we weren’t talking about
       the case.” I said, “Well, no conversations.” It stopped.

      The court then allowed counsel to question Deputy Cutlip and Juror Bowman. The
Deputy testified as follows:



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       As I was coming down the steps, [Juror Bowman] was standing there at the wall
       and she asked me if my brother was Rick Cutlip. And I told her, I said, “I have a
       brother Rick Cutlip, but I’m not sure it’s the same one.” She said, “Well, he taught
       high school in Braxton County.” I said, “That’s the wrong one.” And of course,
       that is when [the trial judge] came down the hall.

Juror Bowman testified that, “It was my fault. I asked him if he was related to Rick Cutlip
because Rick is from Webster County and that’s all.” Juror Bowman confirmed that she and
Deputy Cutlip did not “have any conversation of any nature about this case.” Petitioner then
moved to strike Juror Bowman from the jury. The court took the motion under advisement, and
later denied it on the ground that there was no communication between the two regarding the
case; the communication was initiated by the juror, not the witness; and the conversation took
place in a hallway, not in a private area. Juror Bowman later became the jury foreperson.

        Also during trial, the court questioned the medical examiner, who testified for the State,
as follows:

       THE COURT: Doctor, just for the record, your opinions here today are within a
reasonable degree of medical certainty or pathological certainty; is that correct?

       THE WITNESS: Yes, Your Honor

         THE COURT: Okay. Which gunshot wound to Dustin Brown do you believe occurred
first, the gunshot wounds from the back to the front or through the side?

       THE WITNESS: The sequence of the gunshot wounds, I cannot testify to.

       THE COURT: Okay.

       THE WITNESS: I do not know which one was first and which one was second.

       THE COURT: All right. Now, in regards to Denise Coates, the entry wound was from the
back. Does that indicate that her back was towards the shooter?

       THE WITNESS: This I don’t know. I cannot say.

       THE COURT: Well, I mean, if it’s an entrance wound, the shooter’s got to be somewhere
behind the victim, does he not?

       THE WITNESS: Could you please repeat your question of me?

       THE COURT; Okay. Denise Coates had—she had two wounds?

       THE WITNESS: That’s correct.

       THE COURT: One wound—entrance wound—

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        THE WITNESS: As a matter of fact, three wounds. One of them grazed.


        THE COURT: Right. Okay. One of those wounds—entrance wounds[—]was in the back

area?

        THE WITNESS: That’s right. In the left.

        THE COURT: So it would indicate that the shooter was somewhere behind her?

        THE WITNESS: That’s correct.

       THE COURT: And, likewise, with Dustin Brown, one of his entrance wounds was from
the back area—was in the back area?

        THE WITNESS: That’s correct.

        THE COURT: Which would indicate that the shooter was in the rear of him?

        THE WITNESS: That’s correct.

        THE COURT: Did my question raise any questions?

        DEFENSE COUNSEL: No. Your Honor,

        THE COURT: May this witness be excused?

        THE PROSECUTOR: He may, Your Honor,

        THE COURT: Is there objection?

        DEFENSE COUNSEL: No objection.

        THE COURT: You’re excused and free to go. Thank you very much.

       The jury found petitioner guilty on three counts of voluntary manslaughter and one count
of conspiracy to conceal a deceased human body. The jury acquitted petitioner on the count of
conspiracy to commit murder.

        The circuit court heard petitioner’s post-trial motions on November 1, 2013. By order
entered November 14, 2013, the circuit court denied petitioner’s motion for a new trial and
sentenced petitioner to fifteen years in prison for each of the three voluntary manslaughter
convictions and one to five years in prison for conspiring to conceal Dustin Brown’s body. The
circuit court ordered that all terms be served consecutively.

        Petitioner now appeals her convictions and sentences.



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

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

       Petitioner’s initial argument is based on her claim that the State presented insufficient
evidence at trial for the jury to find that she aided and abetted her husband in shooting the three
victims. She therefore claims that she could not rightfully be convicted of manslaughter. This
Court reviews a defendant’s challenge to the sufficiency of the evidence with substantial
deference to the jury’s findings:

               A criminal defendant challenging the sufficiency of the evidence to
       support a conviction takes on a heavy burden. An appellate court must review all
       the evidence, whether direct or circumstantial, in the light most favorable to the
       prosecution and must credit all inferences and credibility assessments that the jury
       might have drawn in favor of the prosecution. The evidence need not be
       inconsistent with every conclusion save that of guilt so long as the jury can find
       guilt beyond a reasonable doubt. Credibility determinations are for a jury and not
       an appellate court. Finally, a jury verdict should be set aside only when the record
       contains no evidence, regardless of how it is weighed, from which the jury could
       find guilt beyond a reasonable doubt.

Syl. Pt. 3, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

                The function of an appellate court when reviewing the sufficiency of the
       evidence to support a criminal conviction is to examine the evidence admitted at
       trial to determine whether such evidence, if believed, is sufficient to convince a
       reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the
       relevant inquiry is whether, after viewing the evidence in the light most favorable
       to the prosecution, any rational trier of fact could have found the essential
       elements of the crime proved beyond a reasonable doubt.

Syl. Pt. 1, Guthrie, 194 W. Va. at 663, 461 S.E.2d at 169.

        Petitioner was prosecuted for murder on the theory that she was her husband’s
accomplice during the killings, given that she was present, armed, and ready to assist. To
establish that a defendant served as an accomplice, the State must prove that the defendant “in
some sort associate[d] himself with the venture, that he participate[d] in it as something that he
wishe[d] to bring about, that he [sought] by [his] action to make it succeed.” State v. Harper, 179
W.Va. 24, 28, 365 S.E.2d 69, 73 (1987) (citing Judge Learned Hand in U.S. v. Peoni, 100 F.2d
401, 402 (2d Cir.1938). An accomplice may be charged as a principal. W.Va. Code § 61-11-6.
Therefore, the State was not required to prove that petitioner killed the victims; instead, it was

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only required to prove that she was present and aided and abetted her husband’s acts, or that she
advised and encouraged them. State v. Loveless, 140 W.Va. 875, 883, 87 S.E.2d 273, 278-79
(1955). Furthermore, “[p]roof that the defendant was present at the time and place the crime was
committed is a factor to be considered by the jury in determining guilt, along with other
circumstances, such as the defendant’s association with or relation to the perpetrator and his
conduct before and after the commission of the crime.” Syl. Pt. 10, State v. Fortner, 182 W.Va.
345, 387 S.E.2d 812 (1989).

        In this case, in reviewing all the evidence in the light most favorable to the prosecution
and in crediting all inferences and credibility assessments that the jury might have drawn in favor
of the prosecution, a reasonable jury could have found that the State presented sufficient
evidence at petitioner’s trial for the jury to find that petitioner associated herself with her
husband’s crimes and an assisted in making her husband’s action succeed. Such evidence
included (1) petitioner’s and her husband’s admissions to the police that petitioner was present
and armed during the shootings; (2) petitioner’s attempt to help her husband conceal the crimes
by attempting to conceal Dustin Brown’s body; and (3) petitioner’s efforts to cover-up her
husband’s crimes by taking responsibility for the killings. Therefore, we find no error on this
ground.

        Petitioner next argues that her three manslaughter convictions are inconsistent with her
acquittal on the charge of conspiracy to commit murder, and her husband’s murder convictions.
This Court has repeatedly held that claims of inconsistency in jury verdicts are not reviewable on
appeal. See State v. Hall, 174 W.Va. 599, 328 S.E.2d 206 (1985) (“Consistency in the verdict is
not necessary. Each count in an indictment is regarded as if it was a separate indictment.”); State
v. Bartlett, 177 W.Va. 663, 355 S.E.2d 913 (1987) (“[W]e will generally not review claims of
inconsistent jury verdicts.”); State v. Hose, 187 W.Va. 429, 419 S.E.2d 690 (1992) (“In view of
the holding in State v. Hall, this Court cannot conclude that the apparent inconsistency of the
verdicts in the present case constituted reversible error.”). This rule is based on deference to the
jury as the ultimate finder of fact and a reluctance of appellate courts to undermine the jury’s
role. Bartlett, 177 W.Va. at 670, 355 S.E.2d at 920. As such, we will not address the particulars
of this assignment of error.

       Petitioner next argues that West Virginia Code § 61-2-5a(b) prohibited the State from
charging her with conspiracy to conceal a deceased human body. That section provides that

       [i]t 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.

Petitioner claims that because she timely reported to the police that Dustin Brown had been shot
and killed on her property, she was immune from prosecution for the concealment of Mr.
Brown’s body. Based on this claim, petitioner argues that she was likewise immune from
prosecution for conspiracy to conceal Mr. Brown’s body.



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        West Virginia Code § 61-2-5a(b) did not prohibit the State from charging petitioner with
conspiracy to conceal a deceased human body. Petitioner’s indictment charged her with
conspiring to conceal a deceased human body, and not with the completed act of concealment.
Hence, whether petitioner had a defense to the completed act was irrelevant. The law recognizes
the inherent danger in a criminal agreement: “The prohibited conduct is the agreement to commit
an act made an offense by the laws of this State.” State v. Less, 170 W.Va. 259, 265, 294 S.E.2d
62, 67 (1982). Thus, “[i]n order for the State to prove 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.” 170 W.Va. at 261, 294 S.E.2d 63. Therefore, a defendant can be convicted of
conspiracy even if the underlying act is not completed. Id. at 265-66, 294 S.E.2d at 67.
Accordingly, in this case, petitioner could rightfully be charged with, and convicted of,
conspiring to conceal a deceased body even if she had a defense to the completed act of
concealment of a deceased human body. As such, there is no error.

        Petitioner’s next assignment of error is that the circuit court erred in failing to excuse an
offending juror for misconduct and in not granting petitioner’s motion for a new trial on that
ground. Petitioner contends that her convictions must be overturned because the circuit court
allowed Juror Bowman to remain on the jury after she had conversed with State witness Deputy
Cutlip. We review petitioner’s claim for an abuse of discretion. See State v. Gilman, 226 W.Va.
453, 462, 702 S.E.2d 276, 285 (2010).

        With regard to contact between a trial witness and a juror, this Court has recognized that
“there is no automatic requirement that mandates the reversal of a conviction whenever a witness
for the State comes into contact with the jury.” State v. Waugh, 221 W.Va. 50, 56, 650 S.E.2d
149, 155 (2007). Rather, all that is required “is a factual analysis that focuses on the length and
degree of contact between the jury and the witness, as well as an inquiry into whether the witness
provided testimony that was crucial to the conviction, or merely formal in nature.” Id. For
example, in State v. Holland, 178 W.Va. 744, 364 S.E.2d 535 (1987), a witness for a State, who
happened to be a State trooper, had a conversation with several jurors while the parties where
engaged in an in camera hearing with the court. This conversation lasted approximately five
minutes and regarded local football games, deer hunting, and helicopter searches for marijuana.
The trooper later testified that the defendant’s case was not discussed nor was reference made to
the subject of the defendant’s alleged crime. The trooper also had coffee with one of the jurors
on the morning of the defendant’s trial, but he testified that it was before he knew who the jurors
were and the case was not discussed. Id. at 748, 364 S.E.2d at 539. In Holland, we found that,
despite the impropriety of these encounters, the defendant was not entitled to relief because no
prejudice resulted from them. Id. The same holds true in the instant case. Therefore, given that
the circuit court considered the factors required by Holland, it did not err in allowing Juror
Bowman to remain on the jury panel.

       Petitioner next argues that the circuit court abused its discretion and prejudiced petitioner
when it questioned the medical examiner regarding whether two of the decedents were shot in
the back and whether the medical examiner’s opinions were made to a reasonable degree of
medical certainty. This Court reviews a trial court’s questioning of a witness under the abuse of



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discretion standard. See Syl. Pt. 1, in part, State v. Farmer, 200 W.Va. 507, 490 S.E.2d 326
(1997).

        It is axiomatic that “[a] trial judge in a criminal case has a right to control the orderly
process of a trial and may intervene into the trial process for such purpose, so long as such
intervention does not operate to prejudice the defendant’s case.” Syl. Pt. 4, in part, State v.
Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979). Moreover, “[t]he plain language of Rule 614(b)
of the West Virginia Rules of Evidence authorizes trial courts to question witnesses—provided
that such questioning is done in an impartial manner so as to not prejudice the parties.” Syl. Pt. 3,
Farmer, 200 W.Va. at 509, 490 S.E.2d at 327. Here, nothing in the record suggests that the
circuit court abandoned its role of impartiality and neutrality when it asked the medical examiner
to clarify two answers he had already given. Further, petitioner’s counsel did not object to the
circuit court’s questions, even though the circuit court asked both parties if they had any
objections to the court’s discourse with the medical examiner. As such, this assignment of error
must fail.

        Petitioner’s sixth and final assignment of error is that the circuit court erred in imposing
an excessive sentence. Petitioner contends that her sentences were excessive because the State
failed to present sufficient evidence to convict her and because she had no criminal history prior
to these events. Petitioner’s sentences were not excessive because they were within statutory
limits and were not based on any impermissible factor. See Syl. Pt. 4, State v. Goodnight, 169
W.Va. 366, 287 S.E.2d 504 (1982) (“Sentences imposed by the trial court, if within statutory
limits and if not based on some [im]permissible factor, are not subject to appellate review.”).
Thus, petitioner’s claim fails because she does not fall within the narrow class of defendants who
are entitled to attack their statutorily-mandated sentences.

       For the foregoing reasons, we affirm the circuit court November 14, 2013, order.

                                                                                          Affirmed.

ISSUED: April 24, 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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