State v. Shanton, 16-0266
| Decision Date | 13 June 2017 |
| Docket Number | No. 16-0266,16-0266 |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Elizabeth Shanton, Defendant Below, Petitioner |
| Court | West Virginia Supreme Court |
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 thecircuit court's order is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.
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, andpurchased 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: Much of the discovery was in the form of electronic data; each data disc apparently contained folders and sub-folders of documents and multiple gigabytes of data.
Prior to trial, the circuit court granted the Petitioner's motion to dismiss counts two through fifty-four, based upon the Petitioner's assertion that the indictment violated double jeopardy by charging her with fraudulent scheme and the other separate fifty-three counts. In response, the State filed a petition for writ of prohibition in this Court seeking to prohibit enforcement of the dismissal order. This Court granted the writ, as explained in Lorenzetti v. Sanders, 235 W.Va. 353, 774 S.E.2d 19 (2015), finding that each purchase was a distinct offense and that the two statutes under which she was charged each contained elements that the other did not. Thus, this Court found no violation of double jeopardy.
A ten-day trial was conducted in December 2015. Testimony was extensive and included the State's primary witness, Mr. Steve Staton, investigator with the Commission on Special Investigations. Mr. Staton's examination continued during almost the entire first week of trial and concerned his exhaustive investigation into the Petitioner's expenditures. The State also presented a witness from the West Virginia State Auditor's Office (hereinafter "Auditor's Office"), Mr. Tim Butler. Several witnesses from Shepherd University also testified, including the Petitioner's supervisors, her co-worker in her department, and the university P-Card coordinator. Through testimony and the introduction of hundreds of exhibits and thousands of pages of spreadsheets and financial documents, these witnessesprovided 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.
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.
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 thisprosecution, the West Virginia State Auditor's Office[.]"6 Specifically, the Petitioner asserts the State should have disclosed the existence of files from the Auditor's Office containing individual audits on some of her purchases and materials regarding an audit of Shepherd University.
In syllabus point eight of State v. Black, 227 W.Va. 297, 708 S.E.2d 491 (2010), this Court explained:
"There are three components of a constitutional due process violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 401 (1982): (1) the evidence at issue must be favorable to the defendant as exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have prejudiced the defense at trial." Syllabus Point 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).
Although the Petitioner contends that the individual audits allegedly performed by the Auditor's Office were suppressed by the State, she asserted in the circuit court that Brady evidence "was disclosed and hidden in all the discovery." She also asserted at trial that there was "remaining Brady evidence that has not yet been disclosed. . . ." On appeal, she alleges that individual audits would have constituted evidence that her purchases were deemed to be legitimate at the time that they were made.7
The State counters these arguments with the assertion that the Petitioner had access to these materials and that a Brady violation can not exist where the defendant is in possession of the allegedly exculpatory material and even used it to her benefit at trial.8Further, 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 The State provided the forensic information disc and report, and that report contains a handwritten notation that shows the document was carbon copied to the Petitioner nearly two years prior to trial. The record is simply unclear regarding whether some of the evidence at issue was previously overlooked by the Petitioner's counsel or was contained in the voluminous discovery. As the State asserts in its brief, "neither counsel could confirm or deny that the information was previously provided." This Court is unable to speculate10...
To continue reading
Request your trial