State v. McCoy

• Decision Date: 26 May 2022
• Docket Number: 21-0453
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Angel Lynn McCoy, Defendant Below, Petitioner
• Court: West Virginia Supreme Court

State of West Virginia, Plaintiff Below, Respondent
v.
Angel Lynn McCoy, Defendant Below, Petitioner

No. 21-0453

Supreme Court of Appeals of West Virginia

May 26, 2022

(Morgan County CC-33-2020-F-19)

MEMORANDUM DECISION

Petitioner Angel Lynn McCoy, by counsel Nicholas Forrest Colvin, appeals the Circuit Court of Morgan County's May 13, 2021, sentencing order, which also denied petitioner's post-trial motions following her convictions for fraudulent schemes, attempted fraudulent schemes, and conspiracy. Respondent the State of West Virginia, by counsel Patrick Morrisey and Lara K. Bissett, 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 briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner and co-defendants Lindsay A. Wruck ("Wruck"), Joseph A. Watkins ("Watkins"), and David W. Sions, were each indicted by the Morgan County Grand Jury on one count of fraudulent schemes, one count of attempted fraudulent schemes, and one count of conspiracy on June 17, 2020. During petitioner's August 20, 2020, pretrial hearing, petitioner moved to continue the trial because two of her co-defendants were being held on criminal charges in Florida so they were unavailable to testify at her trial. The circuit court noted that it was "not going to just keep punting this case down the road waiting to see if these two . . . co-defendants" are available to testify at trial. The circuit court suggested that both of the absent co-defendants would likely assert their Fifth Amendment rights against self-incrimination if called to testify. However, the circuit court continued the trial to November 4, 2020.

Petitioner did not appear for the October 15, 2020, pretrial hearing, and when her bail bondsman contacted her, petitioner informed him that she "was an hour away." When she failed to appear after approximately an hour and a half, the court issued a capias for her arrest. Petitioner also did not appear for the November 4, 2020, scheduled trial; according to the record, she

1

informed her attorney on November 3, 2020, that she had been exposed to COVID-19 and was quarantined. However, neither the Morgan County Health Department nor the Hampshire County Health Department indicated that they had petitioner on any of their quarantine lists. The court informed petitioner's trial counsel that petitioner was to appear at the courthouse at which time a rapid COVID-19 test would be administered, and her counsel confirmed that he relayed the message. Petitioner replied by text message that she did not have transportation to the courthouse so the court again issued a capias for petitioner's arrest.

On January 15, 2020, petitioner filed a motion to disqualify the judge due to the issuance of the capiases, asserting that there was a "potential appearance of impropriety" for the judge to preside over the capiases and the criminal matter. She also argued that she had a "longstanding history" with the judge, as the judge had been the prosecuting attorney in a 2014 case involving petitioner's children. The circuit court denied the motion to disqualify, but it forwarded the motion to this Court, informing this Court that it had no bias or prejudice against petitioner. This Court issued an order denying petitioner's request.

Petitioner's trial began on March 2, 2021, during which Susan Webster, a co-owner of Herb's Quality Used Cars and Trucks ("Herb's Auto"), testified that on March 5, 2020, petitioner and three others came onto the Herb's Auto's lot in a U-Haul truck, at which time petitioner inquired about the prices of certain cars, including a 2015 Mazda 3. While petitioner was the primary contact with Mrs. Webster, she did not ask about a warranty or vehicle history and did not request a test drive. Petitioner left her cell phone number with Mrs. Webster because Mrs. Webster needed input from her husband, who was gone to an auto auction, on a bottom-line price for the car. Mr. Moss, Mrs. Webster's husband, called petitioner and made arrangements to meet her at 8:00 p.m. that evening. Petitioner purchased the vehicle with a check in the amount of $10, 500. However, when Mrs. Webster took the check to the bank, she learned that it was a fraudulent check. Mrs. Webster then went to the West Virginia State Police barracks to report the fraud.

Mr. Moss testified that once the U-Haul dropped petitioner off at the lot, it left the premises. Once inside his office, Mr. Moss made a copy of petitioner's driver's license and recorded information from petitioner, including her address and social security number. Mr. Moss ran a credit check to confirm petitioner's address and contacted petitioner's purported automobile insurance company. Petitioner then presented a check in her name in the amount of $10, 500 to Mr. Moss. However, the check did not clear, and the bank informed him that the check was fake. Petitioner later contacted Mr. Moss asking what was going on after she was reportedly informed by her mother that police were seeking a warrant against her if she did not return the car. When Mr. Moss called petitioner, she agreed to return the vehicle that night. However, she failed to return the vehicle.

Anthony Yost of Affordable Auto testified that on March 5, 2020, he had a similar encounter with petitioner and three individuals in a U-Haul truck who were interested in two vehicles, including a Chevrolet Tahoe for which he quoted the group a price of $9, 500. The group left the lot but called later that evening to say they would be returning. According to Mr. Yost's testimony, they presented a check for $9, 500 that appeared to be from the account of David Sions, but a friend told Mr. Yost that the check was fake. When the friend took the check into a back room to call the bank, one man from the group disappeared. Mr. Yost then contacted police.

2

Dep. Jeremy Burkholder of the Morgan County Sheriff's Department testified that he received a complaint from Mr. Yost on March 5, 2020, and that Mr. Yost provided a description of the U-Haul truck. Dep. Burkholder later identified the vehicle on Route 522 and initiated a traffic stop, during which he obtained identification ("ID") from Watkins and Wruck. A K9 unit was brought in, and the dog alerted to the presence of drugs. After Mr. Watkins and Ms. Wruck were removed from the vehicle, the vehicle was searched and two large folders were found under the driver's seat. One of those folders was marked "high security checks" and contained numerous blank checks. The other folder had multiple tabs marked with names, and each tab contained numerous printed business checks, personal checks, cashier's checks, and payroll checks. Petitioner's full name was printed on some of the printed checks found in the truck, and one of the cashier's checks was made out to Affordable Autos by petitioner. That check was dated March 5, 2020, and the driver's license number on the check was a long-expired license for petitioner. Dep. Burkholder testified that Watkins and Wruck told him that the computer and printer/scanner found in the truck belonged to petitioner. They also told Dep. Burkholder that they were on their way to petitioner's house at that time of the stop.

Sgt. Joseph Flanigan of the West Virginia State Police testified that the driver's license number listed on the Wells Fargo check that petitioner presented to Mr. Moss actually belonged to David Sions. He further testified that the vehicle from Herb's Auto was eventually recovered in Florida and that Watkins's and Wruck's licenses had Florida addresses on them. However, he testified that Mr. Sions was eliminated as a suspect when it was determined that Clifton Clingerman was the person using David Sions's identity.

The owner and an employee of a local grocery store testified regarding petitioner's February 16, 2020, presentation of a Target payroll check in the amount of $796.42 made out to petitioner. Petitioner used the check to purchase items but received cash back for the balance. That check was returned as a fraudulent check so the grocery store owner contacted the police. Similarly, an employee of a convenience store in Virginia testified that on February 14, 2020, petitioner presented the store with a Target payroll check in the amount of $796.42 made out to petitioner.

According to testimony from Cpl. Bowland of the West Virginia State Police, after reading petitioner her Miranda^[1] rights, petitioner admitted that

Joe [Watkins] asked me if I would cash them a check and I would get half the money. I went in the store, spoke to the lady. She said I would have to spend money in the store if she cashed it. So I got [certain items] and I got $300 and some in cash. I got $125 and [Watkins and Wruck] got the rest

Petitioner guessed that Watkins made the checks, but she denied seeing anyone make them. Petitioner specifically denied knowing that the check she presented to Herb's Auto was fraudulent, though she admitted that she knew Watkins and Wruck were creating fake payroll checks. While she registered the car from Herb's Auto in her name, using her father's address in Virginia, she

3

told Cpl. Bowland that Watkins instructed her to file for a lost or duplicate title and send it to him in Florida.

At the close of the State's case, petitioner made a motion for a judgment of acquittal on the attempted fraudulent schemes charge, arguing that the State had failed to prove that petitioner was present when Mr. Yost was defrauded. The court denied that motion,...