  IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 


                      September 2018 Term

                    _____________________                         FILED 

                                                              November 5, 2018 

                         No. 16-1009                              released at 3:00 p.m.
                    _____________________                     EDYTHE NASH GAISER, CLERK

                                                              SUPREME COURT OF APPEALS

                                                                   OF WEST VIRGINIA




                  STATE OF WEST VIRGINIA, 

                   Plaintiff Below, Respondent


                                v.


                    DAVID M. WASANYI, 

                   Defendant Below, Petitioner 


___________________________________________________________

         Appeal from the Circuit Court of Berkeley County 

             Honorable Michael D. Lorensen, Judge 

                   Criminal Action No. 15-F-17 


                       AFFIRMED 

_________________________________________________________


                              AND

                     ____________________

                          No. 17-0020
                     ____________________

                  STATE OF WEST VIRGINIA, 

                   Plaintiff Below, Respondent


                                v.

                    DAVID M. WASANYI, 

                   Defendant Below, Petitioner 

       ___________________________________________________________

                  Appeal from the Circuit Court of Berkeley County 

                      Honorable Michael D. Lorensen, Judge 

                            Criminal Action No. 16-F-54 


                               AFFIRMED 

        _________________________________________________________



                             Submitted: October 23, 2018
                              Filed: November 5, 2018


Matthew T. Yanni, Esq.                           Patrick Morrisey, Esq.
Yanni Law Firm                                   Attorney General
Martinsburg, West Virginia                       Robert L. Hogan, Esq.
                                                 Deputy Attorney General
                                                 Charleston, West Virginia


JUSTICE FARRELL delivered the Opinion of the Court. 

JUSTICE ALLEN H. LOUGHRY II, suspended and, therefore, not participating. 

JUSTICE PAUL T. FARRELL, sitting by temporary assignment. 

                               SYLLABUS BY THE COURT 



              1.      “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).


              2.      “As a general rule, the refusal to give a requested jury instruction is

reviewed for an abuse of discretion. By contrast, the question of whether a jury was

properly instructed is a question of law, and the review is de novo.” Syl. Pt. 1, State v.

Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996).



              3.      “A trial court’s refusal to give a requested instruction is reversible

error only if: (1) the instruction is a correct statement of the law; (2) it is not substantially

covered in the charge actually given to the jury; and (3) it concerns an important point in

the trial so that the failure to give it seriously impairs a defendant’s ability to effectively

present a given defense.” Syl. Pt. 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).



              4.      “‘The question of whether a defendant is entitled to an instruction on

a lesser included offense involves a two-part inquiry. The first inquiry is a legal one having

                                                i
to do with whether the lesser offense is by virtue of its legal elements or definition included

in the greater offense. The second inquiry is a factual one which involves a determination

by the trial court of whether there is evidence which would tend to prove such lesser

included offense.’ State v. Neider, 170 W.Va. 662, 295 S.E.2d 902 (1982).” Syl. Pt. 1,

State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985).



               5.     “The test of determining whether a particular offense is a lesser

included offense is that the lesser offense must be such that it is impossible to commit the

greater offense without first having committed the lesser offense. An offense is not a lesser

included offense if it requires the inclusion of an element not required in the greater

offense.” Syl. Pt. 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), overruled on

other grounds by State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994).



               6.     “Before a lesser offense can be said to contribute a necessary part of

a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be

included in the elements of the greater offense. If an element necessary to establish the

corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser

cannot be held to be a necessarily included offense.” Syl. Pt. 5, State v. Vance, 168 W.Va.

666, 285 S.E.2d 437 (1981).




                                                ii
              7.     “The prosecuting attorney is vested with discretion in the management

of criminal causes, which discretion is committed to him or her for the public good and for

vindication of the public interest. Thus, the prosecutor may decide which of several

possible charges to bring against an accused.” Syl. Pt. 1, State v. Satterfield, 182 W.Va.

365, 387 S.E.2d 832 (1989).



              8.     “It is a violation of the Equal Protection Clause of the Fourteenth

Amendment to the U.S. Constitution for a member of a cognizable racial group to be tried

on criminal charges by a jury from which members of his race have been purposely

excluded.” Syl. Pt. 1, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).



              9.     “To establish a prima facie case for a violation of equal protection due

to racial discrimination in the use of peremptory jury challenges by the State, ‘the defendant

first must show that he is a member of a cognizable racial group, and that the prosecutor

has exercised peremptory challenges to remove from the venire members of the

defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there

can be no dispute, that peremptory challenges constitute a jury selection practice that

permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant

must show that these facts and any other relevant circumstances raise an inference that the

prosecutor used that practice to exclude the veniremen from the petit jury on account of

their race.’ [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106 S.Ct. 1712 at



                                             iii
1722, 90 L.Ed.2d 69 (1986).” Syl. Pt. 2, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497

(1989).



              10.     “The State may defeat a defendant’s prima facie case of a violation of

equal protection due to racial discrimination in selection of a jury by providing non-racial,

credible reasons for using its peremptory challenges to strike members of the defendant’s

race from the jury.” Syl. Pt. 3, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989).



              11.     “A trial court’s evidentiary rulings, as well as its application of the

Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt.

4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).


              12.     “The right to a trial by an impartial, objective jury in a criminal case

is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United

States Constitution and Article III, Section 14 of the West Virginia Constitution.” Syl. Pt.

4, in part, State v. Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981).



              13.     Pursuant to Rule 23(a) of the West Virginia Rules of Criminal

Procedure, a defendant’s waiver of a jury trial is conditioned upon approval of the trial

court and consent of the State. Absent both the trial court’s approval and the State’s

consent, the defendant is subject to a jury trial.




                                               iv
FARRELL, Justice:

              The petitioner and defendant below, David M. Wasanyi, a pharmacist, was

convicted in two separate trials of multiple felony counts of unlawful delivery of a

controlled substance in violation of West Virginia Code § 60A-4-401(a) (2014).1 In the

case docketed as No. 16-1009, the petitioner was convicted of two counts of Delivery of

Diazepam and sentenced to one to three years in the penitentiary for each conviction. 2 He

was also convicted of one count of Delivery of Buprenorphine and sentenced to one to five

years in the penitentiary for that conviction.3 The trial court ordered that the three sentences

be served consecutively. In the case docketed as No. 17-0020, the petitioner was convicted

of five counts of Delivery of Oxycodone and three counts of Delivery of Methadone and

sentenced to one to fifteen years in the penitentiary for each conviction.4       He was also

convicted of five counts of Delivery of Alprazolam (Xanax) and sentenced to one to three

years in the penitentiary for each of those convictions. 5 The trial court ordered that certain

sentences be served concurrently but consecutive to others, resulting in a total sentence in




       1
        West Virginia Code § 60A-4-401(a) provides: “Except as authorized by this act, it
is unlawful for any person to manufacture, deliver, or possess with intent to manufacture
or deliver, a controlled substance.”
       2
        See W.Va. Code § 60A-4-401(a)(iii).
       3
        See W.Va. Code § 60A-4-401(a)(ii).
       4
        See W.Va. Code § 60A-4-401(a)(i).
       5
        See W.Va. Code § 60A-4-401(a)(iii).
                                               1

No. 17-0020 of five to seventy-five years in the penitentiary.        The court ordered the

sentences to be served consecutive to the sentences imposed in No. 16-1009.



              Following his convictions, the petitioner filed separate appeals with this

Court. By an order entered on April 4, 2018, this Court consolidated the appeals for

purposes of oral argument and decision. In No. 16-1009, the petitioner contends that the

circuit court erred by not instructing the jury pursuant to West Virginia Code § 60A-4-

402(a)(1) (2014), which provides for a misdemeanor conviction for unlawful delivery of a

controlled substance by a pharmacist, which he asserts is a lesser included offense of

delivery of a controlled substance as set forth in West Virginia Code § 60A-4-401(a). In

No. 17-0020, the petitioner sets forth three assignments of error. He argues that the circuit

court erred by: (1) allowing the State to use a peremptory strike in violation of his equal

protection rights; (2) refusing to admit into evidence at trial certain exhibits that he wished

to use to show his state-of-mind and/or the reasonableness of his actions; and (3) denying

his motion for a new trial.



              Having considered the parties’ briefs and oral arguments, the submitted

appendix records, and the pertinent authorities, we find no error. Accordingly, for the

reasons set forth below, the petitioner’s convictions are affirmed.




                                              2

                          I. Facts and Procedural Background

              The facts and procedural history for each case are set forth separately below.

                                        A. No. 16-1009

              In this case, the petitioner was convicted of three felony counts of unlawful

delivery of a controlled substance. At trial, the State presented evidence that the petitioner

dispensed Diazepam, a Schedule IV controlled substance, commonly known as Valium, to

Barbara Foulks on two separate occasions without a valid prescription. According to trial

testimony, Ms. Foulks attempted to obtain prescriptions for this medication, as well as

others, from a medical practice in Martinsburg, West Virginia, in March 2014. The

physician’s assistant who examined Ms. Foulks became suspicious and contacted the

police after Ms. Foulks indicated she would obtain the medication from another source.

An investigation by the Martinsburg City Police and the West Virginia Board of Pharmacy

ensued, which eventually revealed that the petitioner had filled prescriptions for this

medication for Ms. Foulks at the City Pharmacy6 on December 24, 2013, and February 4,

2014. However, the pharmacy’s electronic records of the prescriptions consisted of images

of blank pages from the pharmacy’s own prescription pads.



              There was also evidence presented at trial that the petitioner had filled a

prescription for Buprenorphine, a Schedule III controlled substance, for Krista Davidian

on November 25, 2014. The City Pharmacy’s record for that prescription indicated that


       6
         The record indicates that the petitioner was part owner of the City Pharmacy where
all of the charged offenses allegedly occurred.
                                              3

the medication had been prescribed by Dr. Jafar Almashat. However, Dr. Almashat

testified that neither he, nor anyone from his office, had authorized this prescription.



              During the trial, the petitioner requested that the jury be instructed pursuant

to West Virginia Code § 60A-4-402(a)(1) as a lesser included offense of the general

unlawful delivery of a controlled substance offense set forth in West Virginia Code § 60A-

4-401(a). The circuit court refused to give the instruction. Following his convictions, the

petitioner was sentenced to a total of three to eleven years in the penitentiary by order

entered on October 6, 2016. This appeal followed.



                                        B. No. 17-0020

              In this case, petitioner was indicted on ninety-two counts of delivery of a

controlled substance. Prior to trial, the State elected to proceed on only thirteen counts,

dismissing the other charges. As in the prior case, the offenses were alleged to have

occurred at the City Pharmacy and involved two other individuals who lacked legitimate

prescriptions for the medications dispensed by the petitioner. At trial, Tina Hernandez and

Imogene Abshear, both residents of Kentucky, testified that they devised a scheme with

another woman known as Dianne Fikes or Dianne Lacy, who worked at a pain clinic in

Atlanta, Georgia. In exchange for cash, Ms. Fikes/Lacy would provide prescriptions to

Ms. Hernandez and Ms. Abshear that were purportedly issued by a physician named James




                                              4

Murtagh7 who had practiced at the Georgia clinic. According to Ms. Abshear, someone at

the Georgia clinic told her that she could have the prescriptions filled at the petitioner’s

pharmacy in West Virginia, which was six hundred miles from her home in Kentucky. Ms.

Abshear further testified that she had obtained the petitioner’s cell phone number and

would contact him in advance to arrange a time to come to his pharmacy to have the

prescriptions filled. The evidence indicated that the petitioner was paid in cash to fill the

prescriptions and the transactions were not reported in the Board of Pharmacy’s database.



              Following a multi-day trial, the petitioner was convicted of all thirteen counts

of unlawful delivery of a controlled substance involving the medications Oxycodone,

Methadone, and Alprazolam. After the jury returned its verdict, the petitioner filed a

motion for a new trial which was denied by the trial court on November 15, 2016.

Subsequently, he was sentenced to a total of five to seventy-five years in the penitentiary

by the final order entered on December 15, 2016. This appeal followed.



                                  II. Standard of Review

              The petitioner sets forth multiple assignments of error which require us to

employ different standards of review. Generally,



       7
        The evidence showed that Dr. Murtagh was not practicing medicine at the Georgia
clinic at the time the prescriptions were issued. In fact, testimony presented at trial
indicated that the petitioner had been advised by the clinic prior to filling the prescriptions
at issue that Dr. Murtagh no longer practiced there and any subsequent prescriptions
allegedly signed by him would be fraudulent.
                                              5

                    [i]n 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). When a more specific

standard of review applies to a particular issue, it will be set forth in our analysis.

Accordingly, we proceed to consider the parties’ arguments.



                                     III. Discussion

             As with the facts and procedural history, the petitioner’s assignments of error

with respect to each case will be discussed separately below.

                                       A. No. 16-1009

             The petitioner’s sole assignment of error in this case is that the trial court

erred by refusing to instruct the jury pursuant to West Virginia Code § 60A-4-402(a)(1),

which provides that it is unlawful for a pharmacist to dispense a controlled substance

without a valid prescription.8 Specifically, West Virginia Code § 60A-4-402 provides:

             (a) It is unlawful for any person:
                 (1) Who is subject to article 3 [§§ 60A-3-301 et seq.] to
                     distribute or dispense a controlled substance in violation
                     of section 308 [§ 60A-3-308][.]

      8
       A person who violates West Virginia Code § 60A-4-402(a) is subject to a
misdemeanor conviction and a period of confinement of “not less than six months nor more
than one year.” W.Va. Code § 60A-4-402(b). The statute further provides for a fine of
“not more than twenty-five thousand dollars” in addition to or in lieu of confinement. Id.

                                             6

West Virginia Code §§ 60A-3-301 to -308 (2014) provide for the “Regulation of

Manufacture, Distribution and Dispensing of Controlled Substances” by the State Board of

Pharmacy. Pharmacists, like the petitioner, are required to register with the State Board of

Pharmacy,9 and West Virginia Code § 60A-3-308 (2014) provides that pharmacists may

only dispense controlled substances pursuant to a lawful prescription of a practitioner.10


       9
        West Virginia Code § 60A-3-302(a) (2014) provides:

                       Every person who manufactures, distributes, or
                dispenses any controlled substance within this State or who
                proposes to engage in the manufacture, distribution, or
                dispensing of any controlled substance within this State, must
                obtain annually a registration issued by the State Board of
                Pharmacy or the appropriate department, board, or agency, as
                the case may be, as specified in section 301 [§ 60A-3-301], in
                accordance with its rules.
       10
           West Virginia Code § 60A-3-308, titled “Prescriptions,” provides as follows:

                        (a) Except when dispensed directly by a practitioner,
                other than a pharmacy, to an ultimate user, no controlled
                substance in Schedule II may be dispensed without the lawful
                prescription of a practitioner.
                        (b) In emergency situations, as defined by rule of the
                said appropriate department, board or agency, Schedule II
                drugs may be dispensed upon oral prescription of a
                practitioner, reduced promptly to writing and filed by the
                pharmacy. Prescription shall be retained in conformity with
                the requirements of section three hundred six [§ 60A-3-306] of
                this article. No prescription for a Schedule II substance may be
                refilled.
                        (c) Except when dispensed directly by a practitioner,
                other than a pharmacy, to an ultimate user, a controlled
                substance included in Schedule III or IV, which is a
                prescription drug as determined under appropriate state or
                federal statute, shall not be dispensed without a lawful
                prescription of a practitioner. The prescription shall not be
                                               7
The petitioner contends that W.Va. Code § 60A-4-402(a)(1) is a lesser included offense of

West Virginia Code § 60A-4-401(a), and the circuit court should have instructed the jury

in that regard. He further argues that the jury should have received the instruction even

though he was charged under the general delivery statute, West Virginia Code § 60A-4-

401(a), because the offenses were alleged to have been committed in his capacity as a

pharmacist.



              “As a general rule, the refusal to give a requested jury instruction is reviewed

for an abuse of discretion. By contrast, the question of whether a jury was properly




              filled or refilled more than six months after the date thereof or
              be refilled more than five times unless renewed by the
              practitioner.
                      (d)(1) A controlled substance included in Schedule V
              shall not be distributed or dispensed other than for a medicinal
              purpose: Provided, That buprenorphine shall be dispensed only
              by prescription pursuant to subsections (a), (b) and (c) of this
              section: Provided, however, That the controlled substances
              included in subsection (e), section two hundred twelve [§ 60A-
              2-212], article two of this chapter shall be dispensed, sold or
              distributed only by a physician, in a pharmacy by a pharmacist
              or pharmacy technician, or health care professional.
                      (2) If the substance described in subsection (e), section
              two hundred twelve, article two of this chapter is dispensed,
              sold or distributed in a pharmacy:
                      (A) The substance shall be dispensed, sold or distributed
              only by a pharmacist or a pharmacy technician; and
                      (B) Any person purchasing, receiving or otherwise
              acquiring any such substance shall produce a photographic
              identification issued by a state or federal governmental entity
              reflecting his or her date of birth.

                                              8

instructed is a question of law, and the review is de novo.” Syl. Pt. 1, State v. Hinkle, 200

W.Va. 280, 489 S.E.2d 257 (1996). This Court has held that

                     [a] trial court’s refusal to give a requested instruction is
              reversible error only if: (1) the instruction is a correct statement
              of the law; (2) it is not substantially covered in the charge
              actually given to the jury; and (3) it concerns an important
              point in the trial so that the failure to give it seriously impairs
              a defendant’s ability to effectively present a given defense.

Syl. Pt. 11, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).



              With respect to instructions for lesser included offenses, this Court has

explained that

                      “[t]he question of whether a defendant is entitled to an
              instruction on a lesser included offense involves a two-part
              inquiry. The first inquiry is a legal one having to do with
              whether the lesser offense is by virtue of its legal elements or
              definition included in the greater offense. The second inquiry
              is a factual one which involves a determination by the trial
              court of whether there is evidence which would tend to prove
              such lesser included offense.” State v. Neider, 170 W.Va. 662,
              295 S.E.2d 902 (1982).

Syl. Pt. 1, State v. Jones, 174 W.Va. 700, 329 S.E.2d 65 (1985). Addressing the first

inquiry, this Court has held:

                       The test of determining whether a particular offense is
              a lesser included offense is that the lesser offense must be such
              that it is impossible to commit the greater offense without first
              having committed the lesser offense. An offense is not a lesser
              included offense if it requires the inclusion of an element not
              required in the greater offense.

Syl. Pt. 1, State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981), overruled on other grounds

by State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994). In other words,

                                               9

                    [b]efore a lesser offense can be said to contribute a
             necessary part of a greater offense, all the legal ingredients of
             the corpus delicti of the lesser offense must be included in the
             elements of the greater offense. If an element necessary to
             establish the corpus delicti of the lesser offense is irrelevant to
             the proof of the greater offense, the lesser cannot be held to be
             a necessarily included offense.

Syl. Pt. 5, State v. Vance, 168 W.Va. 666, 285 S.E.2d 437 (1981).



             The State contends that the petitioner’s argument fails under the first inquiry

because West Virginia Code § 60A-4-402(a)(1) requires proof of additional elements that

are not necessary to establish a violation of West Virginia Code § 60A-4-401(a). We agree.

West Virginia Code § 60A-4-401 and West Virginia Code § 60A-4-402 are both part of

the Uniform Controlled Substances Act codified at West Virginia Code § § 60A-1-101 to

60A-6-605 (2014) (“USCA”).

                     West Virginia’s UCSA, adopted in 1971, is derived
             from the Uniform Controlled Substances Act of 1970, which
             was approved in that year by the National Conference of
             Commissioners on Uniform State Laws. The UCSA, in turn, is
             similar to its federal counterpart, the Federal “Controlled
             Substances Act” of 1970, as amended, 21 U.S.C. §§ 801-971
             (1988), and, in fact, the Uniform Controlled Substances Act of
             1970 “was drafted to achieve uniformity between the laws of
             the several States and those of the Federal government.”
             Uniform Controlled Substances Act of 1970 prefatory note,
             vol. 9, part II, U.L.A. 2 (1988).

                     Both the Federal Controlled Substances Act and West
             Virginia’s UCSA contain sections authorizing certain persons,
             including physicians, dentists or other statutorily defined
             practitioners,11 to engage in certain activities with controlled

      11
        West Virginia Code § 60A-1-101(x) (2014) defines “practitioner” as:

                                             10 

             substances once they comply with the registration sections of
             the respective Acts. Both Acts provide general penalties,
             applicable to “any person,” for the offense of distributing or
             delivering controlled substances “except as authorized[.]” In
             addition, both Acts have separate, less severe penalty sections
             for violations of the technical, administrative requirements of
             the registration and prescription sections.

State v. Young, 185 W.Va. 327, 335, 406 S.E.2d 758, 766 (1991) (footnotes omitted)

(footnote added).



             As set forth above, West Virginia Code § 60A-4-401(a) is the general

provision providing that it is unlawful for “any person” to deliver a controlled substance

“except as authorized.” In contrast, a person violates West Virginia Code § 60A-4-

402(a)(1) only if the person is subject to West Virginia Code § 60A-3-301 to -308, and the

person dispenses or distributes a controlled substance in violation of West Virginia Code

§ 60A-3-308. Consequently, when the elements of West Virginia Code § 60A-4-401(a)

are compared with the elements of West Virginia Code § 60A-4-402(a)(1), it is clear that

the latter offense contains at least two elements not required to prove a violation of the




                    (1) A physician, dentist, veterinarian, scientific
             investigator or other person licensed, registered or otherwise
             permitted to distribute, dispense, conduct research with respect
             to, or to administer a controlled substance in the course of
             professional practice or research in this state.

                     (2) A pharmacy, hospital or other institution licensed,
             registered or otherwise permitted to distribute, dispense,
             conduct research with respect to, or to administer a controlled
             substance in the course of professional practice or research in
             this state.
                                           11 

former. Indeed, a person need not be subject to Chapter 60A, Article 3 of the West Virginia

Code to violate West Virginia Code § 60A-4-401(a). Having found that West Virginia

Code § 60A-4-402(a)(1) contains additional elements not necessary to prove a violation of

West Virginia Code § 60A-4-401(a), our inquiry need not proceed further. A violation of

West Virginia Code § 60A-4-402(a)(1) is not a lesser included offense of West Virginia

Code § 60A-4-401(a). Therefore, the circuit court did not err by refusing to give the jury

a lesser included offense instruction with respect to West Virginia Code § 60A-4-402(a)(1).



              To the extent that the petitioner is also asserting that he could only be charged

under West Virginia Code § 60A-4-402(a)(1) because the offenses were allegedly

committed in his capacity as a pharmacist, his argument is equally unavailing. This Court

has made clear that

                     [t]he prosecuting attorney is vested with discretion in
              the management of criminal causes, which discretion is
              committed to him or her for the public good and for vindication
              of the public interest. Thus, the prosecutor may decide which
              of several possible charges to bring against an accused.

Syl. Pt. 1, State v. Satterfield, 182 W.Va. 365, 387 S.E.2d 832 (1989). Stated another way,

“[t]he prosecutor’s discretion in the management of criminal causes includes decisions on

what charges to file, against whom, in what court and the type of indictment to be sought,

as well as, the order and timing of these activities.” Satterfield, 182 W.Va. at 367, 387

S.E.2d at 834. Of course, “[b]efore exercising this discretion the prosecutor has a duty to

investigate the facts, with care and accuracy, to examine the available evidence, the law



                                             12 

and the facts, and intelligently to weigh the chances of successful termination of the

prosecution.” Id.



              Regarding West Virginia Code 60A-4-401(a), we observed in Young that the

United States Supreme Court, addressing the statute’s federal counterpart in United States

v. Moore, 423 U.S. 122 (1975), held unanimously that

                      registered physicians or other registered practitioners
              may be prosecuted under this statute providing the severest
              penalties when their activities knowingly or intentionally “fall
              outside the usual course of professional practice[,]” [Moore,
              423 U.S.] at 124, 96 S.Ct. at 337, 46 L.Ed.2d at 337, referring
              to the statutory definition of “practitioner.” The court so held
              regardless of whether the practitioners may also be prosecuted
              under another section, 21 U.S.C. § 842 (1988), for the less
              serious offenses of noncompliance with the technical,
              administrative requirements concerning controlled substances.
              Id. at 138, 96 S.Ct. at 343, 46 L.Ed.2d at 345.

                     Accordingly, the Supreme Court of the United States in
              Moore rejected the proposition that there were two mutually
              exclusive systems of sanctions, a relatively toothless system
              for registered practitioners and a more serious system for all
              other persons.

Young, 185 W.Va. at 337, 406 S.E.2d at 768 (footnote omitted). Consequently, in Young,

this Court found that a dentist was subject to prosecution pursuant to West Virginia Code

§ 60A-4-401(a) for prescribing and dispensing controlled substances outside the usual

course of his professional practice regardless of the fact that he could have been prosecuted

for a less serious offense because of his status as a professional. Likewise, licensed

pharmacists, like the petitioner, are subject to prosecution under West Virginia Code §



                                             13 

60A-4-401(a) for dispensing and delivering controlled substances without a valid

prescription. Accordingly, we find no merit to the petitioner’s argument.



                                       B. No. 17-0020

              The petitioner assigns three errors in this case. We address each, in turn,

below.



              1. The peremptory strike. The petitioner argues that the circuit court erred

by failing to sustain his objection to the State’s use of a peremptory strike to remove an

African American juror from the jury panel in violation of his right to equal protection

under the Fourteenth Amendment to the United States Constitution. The petitioner is an

African American who came to the United States from Uganda. This Court has long

recognized that

                     [i]t is a violation of the Equal Protection Clause of the
              Fourteenth Amendment to the U.S. Constitution for a member
              of a cognizable racial group to be tried on criminal charges by
              a jury from which members of his race have been purposely
              excluded.

Syl. Pt. 1, State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989). In syllabus two of Marrs,

this Court held:

                     To establish a prima facie case for a violation of equal
              protection due to racial discrimination in the use of peremptory
              jury challenges by the State, “the defendant first must show
              that he is a member of a cognizable racial group, and that the
              prosecutor has exercised peremptory challenges to remove
              from the venire members of the defendant’s race. Second, the
              defendant is entitled to rely on the fact, as to which there can

                                            14
              be no dispute, that peremptory challenges constitute a jury
              selection practice that permits ‘those to discriminate who are
              of a mind to discriminate.’ Finally, the defendant must show
              that these facts and any other relevant circumstances raise an
              inference that the prosecutor used that practice to exclude the
              veniremen from the petit jury on account of their race.”
              [Citations omitted.] Batson v. Kentucky, 476 U.S. 79 at 96, 106
              S.Ct. 1712 at 1722, 90 L.Ed.2d 69 (1986).

180 W.Va. at 693, 379 S.E.2d at 497. This Court further held in Marrs that

                     [t]he State may defeat a defendant’s prima facie case of
              a violation of equal protection due to racial discrimination in
              selection of a jury by providing non-racial, credible reasons for
              using its peremptory challenges to strike members of the
              defendant’s race from the jury.

Id., syl. pt. 3. Importantly,

                      [s]triking even a single black juror for racial reasons
              violates equal protection, even though other black jurors
              remain on the panel. The focus of the trial court’s analysis
              should be on whether the State’s reason for a challenged strike
              is pretextual, and not on the overall composition of the jury.

Syl. Pt. 12, State v. Rahman, 199 W.Va. 144, 483 S.E.2d 273 (1996).


              The record shows that following voir dire, the State used a peremptory strike

to remove juror number one, Mrs. C.,12 from the jury panel. Mrs. C. was one of two African

American jurors on the jury panel. As discussed above, the petitioner objected and asserted

that the removal of Mrs. C. from the jury panel violated his right to equal protection. The

State responded that it was using the peremptory strike because of Mrs. C’s health issues


12
  We refer to juror number one by an initial rather than her full name because of the
personal information disclosed herein. See In re K.H., 235 W.Va. 254, 256 n. 1, 773 S.E.2d
20, 22 n. 1 (2015) (“Because this case involves sensitive facts, we protect the identities of
those involved by using . . . initials[.]).”
                                             15 

about which she had voluntarily informed the trial court. In this appeal, the State maintains

that it used its peremptory strike for non-racial, credible reasons.



              During voir dire, Mrs. C. informed the trial court that she had been

hospitalized the week before for five days and was just released the preceding Saturday.

She stated that she had a dialysis appointment at 4:30 that day and was also scheduled for

dialysis on Thursday. She indicated that sitting for more than an hour and a half made her

legs swell and that she was taking pain medication, namely Oxycontin and Oxycodone.

Mrs. C. explained that she suffers from sickle cell anemia, a chronic illness, as does her

son, who had been prescribed Methadone for treatment of his pain. Mrs. C. stated, however,

that neither she nor her son had addiction issues with respect to their pain medications.

Despite her health issues, Mrs. C. stated that she could serve on the jury as long as she was

able to attend her dialysis appointments. Additionally, in response to questions during voir

dire, Mrs. C. indicated that her husband was formerly employed by this Court to monitor

sex offenders and that he had previously worked at the Martinsburg Correctional Center.

Responding to questioning from the petitioner’s counsel, Mrs. C. indicated that she could

fairly consider the issues.



              Inasmuch as the petitioner is a member of a cognizable racial group and the

State exercised its peremptory challenge to remove an African American from the jury, the

petitioner made a showing sufficient to require the State to provide a satisfactory, nonracial



                                              16 

reason for striking Mrs. C. At trial, the State offered the following explanation for using

its peremptory strike:

                      [Mrs. C.] presented with various health issues today.
              That is the state’s concern. She going to be—she’s got two
              appointments for dialysis this week. She told us that an hour
              and a half would be long stretches for her; and it appears that,
              you know, she was having some physical discomfort being in
              the courtroom here this morning. And so for those reasons, we
              thought it would be best to strike [Mrs. C.] for her personal
              comfort and to avoid a potential distraction or disruption of the
              trial and delay the trial.

              Upon review, we find that the State met its burden of establishing a credible

justification for removing Mrs. C. from the jury panel. Indeed, the State’s concern for Mrs.

C.’s personal comfort because of her chronic health issues, as well as the potential for delay

or distraction that might have resulted from the need to accommodate Mrs. C.’s medical

appointments, were credible reasons for the State’s exercise of its peremptory strike.13

There is no indication of purposeful discrimination on the part of the State. Accordingly,

the circuit court did not abuse its discretion in overruling the petitioner’s objection to the

State’s peremptory strike.




       13
        Additionally, when it overruled the petitioner’s objection, the trial court noted:

                     And the record won’t show it, but the courtroom deputy,
              Morris Stewart, has approached me twice about [Mrs. C.]
              nodding off; and she does appear to be in discomfort just
              simply sitting in her chair. She had to be escorted from the
              courtroom during the mere strike process, which took by my
              count about 25 minutes, due to a bleeding issue.
                                             17 

               2. Exclusion of evidence. The petitioner next argues that the circuit court

erred by refusing to admit into evidence at trial documentation provided by the petitioner’s

pharmacy customers to show his state-of-mind and/or the reasonableness of his actions. It

is well-established that “[a] trial court’s evidentiary rulings, as well as its application of the

Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt.

4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). The documents the

petitioner sought to have admitted were: (1) a letter dated November 2, 2015, designated

as Exhibit 3, which was purportedly signed by Dr. Murtagh, that stated Ms. Hernandez had

been under his care since January 15, 2014, and described the medications and dosages

allegedly prescribed for her; (2) a final report on a February 2012 MRI of Ms. Abshear’s

cervical spine designated as Exhibit 4; and (3) a February 2009 MRI report concerning Ms.

Abshear’s cervical spine marked as Exhibit 5. Testimony at trial revealed that Exhibit 3

was actually prepared by Ms. Fikes/Lacy and was provided by Ms. Hernandez after the

charged offenses allegedly occurred. The court declined to admit the letter into evidence

because of a lack of an adequate foundation. The trial court excluded Exhibits 4 and 5 for

the stated reason that the probative value was outweighed by the potential to confuse the

jury. In that regard, the trial court explained:

                       I’m not going to entertain a great deal of detail on the
               diagnostic conditions of these patients simply because we’ve
               gotten into the fact that they have problems, and I’m not going
               to have this jury confused over what the role of a registered
               pharmacist is. You refer to him as Dr. Wasanyi. I assume he’s
               got the doctorate from some institution. But, you know, doctor
               in our culture connotes medical doctor which means prescriber.
               And, you know, I am not going to have—well, I just think it’s


                                               18 

              confusing. It certainly exceeds any probative value these
              documents may have, and, therefore, I’ll exclude them.


              Upon review, we find no basis to conclude the trial court abused its discretion

by refusing to admit petitioner’s Exhibits 3, 4, and 5 into evidence at trial. There was no

evidence that any of the documentation was provided to the petitioner before the charged

offenses were allegedly committed. Furthermore, given the limited probative value of the

documentation and the significant potential to confuse the jury as recognized by the trial

court, the exclusion of the evidence was not an abuse of discretion.



              3. Denial of Motion for a New Trial. The petitioner’s final assignment of

error is that the trial court erred by not granting his motion for a new trial. The motion was

based on the trial court’s denial of the petitioner’s request for a bench trial. Following his

convictions in the prior case, No. 16-1009, the petitioner filed a written waiver of his right

to a trial by jury in this case. During pre-trial proceedings, the petitioner, through counsel,

explained why he was seeking a bench trial:

                      [H]e’s already been through this process one time. He
              believes that the evidence is extremely complex, and it’s
              perhaps not easily understood by a jury. He believes that the
              jury in the first case did not really deliberate and did not really
              understand the evidence that was presented in the first case.


              Rule 23(a) of the West Virginia Rules of Criminal Procedure addresses

“[t]rial by jury” and provides that “[c]ases required to be tried by jury shall be so tried

unless the defendant waives a jury trial in writing with the approval of the court and consent


                                              19 

of the state.” In this case, the State did not oppose the petitioner’s request for a bench trial,

but the trial court declined to proceed in that manner, explaining,

                     In this case, I’m burdened for the fact that this is—
              obviously, I’ve got a prior case with Mr. Wasanyi. And, you
              know, while I have every confidence that I could segregate
              what I’ve seen and what’s gone on before, I think these are the
              sort of things that a fresh pair of eyes or 24 fresh eyes, as the
              case may be, would be better—it would mean something if a
              jury felt that the state had not met its burden or if they felt that
              they had. And I just feel much more comfortable having the
              public’s input into a serious matter of this nature and that the
              public confidence in a verdict of 12 ordinary citizens seeing,
              reacting to the evidence as a person of ordinary intelligence
              would than someone who is inside the courthouse and someone
              whose business it is to hear these cases.

                      I think the end result, though much harder to come by
              in the sense of time, would be better—I think justice would be
              better served in my view by having the matter submitted to a
              jury. And, therefore, while I appreciate the opportunity to hear
              the matter and try it—and I don’t have any doubts myself, but
              of course I’m not the person that I’m concerned about. I’m
              concerned about Mr. Wasanyi’s impression after the case had
              been concluded as well as the general public’s perception that
              justice was done.


              In this appeal, the petitioner argues that the trial court erred by not granting

his request for a bench trial because he executed a waiver of his right to a jury trial and the

State did not object. The petitioner, however, cites no authority in support of his argument.

Instead, the petitioner’s discussion of law, which consists of one paragraph, concerns the

procedure outlined in State v. Redden, 199 W.Va. 660, 487 S.E.2d 318 (1997),14 for



       14
         Syllabus point four of Redden holds:


                                               20 

determining whether a defendant has made a knowing and voluntarily waiver of his right

to a jury trial. As the State points out, the law pertaining to the validity of a waiver of the

right to a jury trial is irrelevant here because the trial court did not approve the petitioner’s

request to proceed with a bench trial.



              The issue is whether the trial court had the authority to deny the petitioner’s

request for a bench trial when the State consented. This Court has long recognized that

“[t]he right to a trial by an impartial, objective jury in a criminal case is a fundamental right

guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and

Article III, Section 14 of the West Virginia Constitution.” Syl. Pt. 4, in part, State v.

Peacher, 167 W.Va. 540, 280 S.E.2d 559 (1981). While this Court has never considered

whether a defendant has a reciprocal constitutional right to a bench trial, the United States

Supreme Court has clearly held that such a right does not exist.




                      When a criminal defendant in a circuit court proceeding
              seeks to waive the right to a jury trial, the preferred procedure
              is for the trial court: (1) to interrogate the defendant on the
              record concerning whether he understands the nature of the
              right he is waiving; (2) if the defendant is represented by
              counsel, to ascertain whether the defendant has consulted with
              counsel about the decision to waive a jury trial; (3) to spread
              upon the record sufficient information to demonstrate that the
              defendant’s jury trial waiver is made personally, knowingly,
              intelligently and voluntarily; and (4) to obtain the defendant’s
              signature on a written waiver of the right to a jury trial.

Id. at 662, 487 S.E.2d at 320.

                                               21 

              In Singer v. United States, 380 U.S. 24 (1965), the petitioner therein

challenged the federal counterpart of Rule 23 of the West Virginia Rules of Criminal

Procedure15 asserting that the rule affords a defendant the right to waive a jury trial

“whenever he believes such action to be in his best interest, regardless of whether the

prosecution and the court are willing to acquiesce in the waiver.” 380 U.S. at 25. Singer

had been charged with multiple counts of mail fraud, and he sought a bench trial to avoid

a lengthy proceeding. Id. Upholding the validity of Rule 23(a), the Supreme Court

explained,

                      In light of the Constitution’s emphasis on jury trial, we
              find it difficult to understand how the petitioner can submit the
              bald proposition that to compel a defendant in a criminal case
              to undergo a jury trial against his will is contrary to his right to
              a fair trial or due process. A defendant’s only constitutional
              right concerning the method of trial is to an impartial trial by
              jury. We find no constitutional impediment to conditioning a
              waiver of this right on the consent of the prosecuting attorney
              and the trial judge when, if either refuses to consent, the result
              is simply that the defendant is subject to an impartial trial by
              jury—the very thing that the Constitution guarantees him.



       15
          When Singer was decided, Rule 23(a) of the Federal Rules of Criminal Procedure
provided: “‘Cases required to be tried by jury shall be so tried unless the defendant waives
a jury trial in writing with the approval of the court and the consent of the government.’”
Singer, 380 U.S. at 24. The federal rule was stylistically amended after Singer, but remains
the same substantively, providing as follows:

              (a)	 Jury Trial. – If the defendant is entitled to a jury trial, the
                  trial must be by jury unless:
                      (1) the defendant waives a jury trial in writing;
                      (2) the government consents; and
                      (3) the court approves.

Fed. R. Civ. Proc. 23.
                                              22 

Id. at 36. Rule 23(a) of the West Virginia Rules of Criminal Procedure is substantively

identical to its federal counterpart allowing either the State or the trial court to withhold

“consent” and “approval,” respectively, of a defendant’s waiver of the right to a jury trial.

Although Singer concerned the government’s refusal to consent, it is clear from the Court’s

rationale set forth above that “the trial court’s ‘approval’ of a defendant’s jury-trial waiver

. . . is not [a] quasi-ministerial rubber-stamping of the parties’ request[.]” State v. Burks,

674 N.W.2d 640, 644 (Wis. Ct. App. 2003).16 Rather, the rule clearly provides that if the

State refuses to consent or the court refuses to approve a defendant’s request for a bench

trial, the defendant must be tried before an impartial jury. Accordingly, we now hold that

pursuant to Rule 23(a) of the West Virginia Rules of Criminal Procedure, a defendant’s

waiver of a jury trial is conditioned upon approval of the trial court and consent of the

State. Absent both the trial court’s approval and the State’s consent, the defendant is

subject to a jury trial. Applying our holding to the facts of this case, we find that the circuit

court committed no error.




       16
         In Burks, the defendant, like the petitioner in the case sub judice, challenged the
trial court’s denial of his request for a bench trial. Upholding Wisconsin’s criminal
procedure rule that is also patterned after Rule 23(a) of the Federal Rules of Criminal
Procedure, the Wisconsin court noted that “there is nothing in the text [of the rule] that
requires either the State or the trial court to either assess the merits of the defendant’s
proffered jury-trial waiver or to give a reason for withholding either ‘consent’ or
‘approval.’” 674 N.W.2d at 645-46.
                                               23 

                                   IV. Conclusion

             For the foregoing reasons, the final orders of the Circuit Court of Berkeley

County entered on October 6, 2016, and December 15, 2016, are affirmed.

                                                                           Affirmed.




                                          24 

