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State v. Shanton

Supreme Court of West Virginia

June 13, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Elizabeth Shanton, Defendant Below, Petitioner

         (Jefferson County 13-F-73)

          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 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 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 primarywitness, 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 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 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 allegedlyperformed 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] 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 speculate[10] 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.

         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]

         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 fullyexplored 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 ...


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