State v. Sites, No. 16-0437

• Court: Supreme Court of West Virginia
• Writing for the Court: JUSTICE HUTCHISON delivered the Opinion of the Court.
• Decision Date: 07 February 2019
• Parties: STATE OF WEST VIRGINIA, Respondent v. MICHAEL S. SITES, Petitioner
• Docket Number: No. 16-0437

STATE OF WEST VIRGINIA, Respondent
v.
MICHAEL S. SITES, Petitioner

No. 16-0437

SUPREME COURT OF APPEALS OF WEST VIRGINIA

JANUARY 2019 TERM
Submitted: January 29, 2019
February 7, 2019

Appeal from the Circuit Court of Grant County
Honorable Lynn Nelson, Judge
Criminal Action No. 15-F-19

AFFIRMED

Nicholas T. James, Esq.
Daniel R. James, Esq.
The James Law Firm
Keyser, West Virginia
Attorneys for Petitioner

Patrick Morrisey, Esq.
Attorney General
Thomas T. Lampman, Esq.
Assistant Attorney General
Gordon L. Mowen, II, Esq.
Assistant Attorney General
Attorneys for Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court.

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SYLLABUS BY THE COURT

1. "'To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.' Syllabus point 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996)." Syllabus point 10, State v. Shrewsbury, 213 W. Va. 327, 582 S.E.2d 774 (2003).

2. "Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402

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of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence." Syllabus point 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516, (1994).

3. "The decision to grant a motion for severance pursuant to W. Va. R. Crim. P. 14(a) is a matter within the sound discretion of the trial court." Syllabus point 3, in part, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988).

4. "In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings." Syllabus point 7, in part, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).

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5. Under Rule 43(a) of the West Virginia Rules of Criminal Procedure, a defendant has a right to be present with counsel and provided with an opportunity to be heard, prior to a trial court responding to a jury question during its deliberations. This right may be waived and a violation is subject to harmless error analysis.

6. "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." Syllabus point 1, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

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Hutchison, Justice:

This appeal was brought by Michael S. Sites (hereinafter "Petitioner") from the April 11, 2016, order of the Circuit Court of Grant County sentencing him for his convictions of first-degree murder, holding a hostage to defile, and two counts of possession of a controlled substance with intent to deliver.¹ In this appeal Petitioner has assigned error as follows: admission of toxicology evidence, admission of Rule 404(b) evidence, joinder of Count II with other offenses, failure to sever offenses occurring on different dates, improperly responding to jury questions, admission of previously excluded evidence, and insufficient evidence to support two convictions. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

The relevant facts of this case began on September 12, 2013. On that day, Petitioner drove from his home in Grant County, West Virginia, to a pharmacy in Winchester, Virginia, to pick up his prescription drugs Alprazolam (also called Xanax) and

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Oxycodone (also called Percocet).² Petitioner was accompanied by his adult daughter, Jordan Kivett, and an adult family relative named Lexus Cantwell.³ After obtaining the pills, and while still in the pharmacy parking lot, Petitioner, Ms. Kivett and Ms. Cantwell crushed some of the pills and snorted them up their noses. Later that evening a party was held at Petitioner's home in Grant County. Petitioner gave his prescription pills freely to all the females at the party, including Ms. Cantwell. The men were required to pay for the pills.

At some point during the evening, Ms. Cantwell became incapacitated from taking the prescription pills and drinking alcohol. After a few of the guests did not see Ms. Cantwell in the house, they asked Petitioner where she was. Petitioner stated that Ms. Cantwell "passed out in the closet, so [he] put her in the bed." One of the guests, Joey Snyder, demanded to see Ms. Cantwell.⁴ Petitioner unlocked his bedroom door briefly and Mr. Snyder was able to see Ms. Cantwell lying on a bed with her pants off.

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It appears that during the course of the next four days Ms. Cantwell stayed at Petitioner's home. Ms. Kivett, who had been staying at Petitioner's home, stayed at the home of her boyfriend during this four-day period. However, Ms. Kivett maintained daily contact with Ms. Cantwell during this time. Ms. Kivett had the impression that Ms. Cantwell "acted like she almost wasn't allowed to [leave Petitioner's home]." On September 16, 2013, Ms. Kivett went to Petitioner's home to do some laundry. She repeatedly knocked on Petitioner's bedroom door, which was locked, but got no answer. After being in the home for several hours, Ms. Kivett began knocking on Petitioner's bedroom door again. Petitioner finally responded and said that he would be out. After Petitioner came out of his bedroom, Ms. Kivett saw Ms. Cantwell lying on his bed with vomit coming out of her mouth and blood coming out of her nose and ears; she was dead. Ms. Kivett told Petitioner to call 911, but he decided to drive Ms. Cantwell's body to a hospital.

Petitioner dropped off Ms. Cantwell's body at Grant Memorial Hospital. He informed a nurse that Ms. Cantwell was a friend of his daughter and that he believed her name was Lexi. Petitioner left the hospital without telling the nurse his name. After Petitioner left the hospital, he saw Ms. Kivett riding with her boyfriend and flagged them down. During a brief discussion with Ms. Kivett on the roadside, Petitioner attempted to get her to agree that he was at work when she found Ms. Cantwell's body. Ms. Kivett informed Petitioner that she was going to tell the truth. A few days later Petitioner tried to

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suggest to Ms. Kivett that Ms. Cantwell committed suicide. Several days after this incident Petitioner told Ms. Kivett that "he was afraid that it was his fault, that he may have gave [Ms. Cantwell] too many pills." A pathologist determined that Ms. Cantwell "died of intoxication by the combined effects of the oxycodone and the alprazolam."

Subsequent to a police investigation, a grand jury returned a five count indictment against Petitioner on March 3, 2015. The indictment charged him with one count of first-degree murder by supplying Ms. Cantwell with lethal amounts of Oxycodone and Alprazolam; one count of holding Ms. Cantwell hostage with the intent to defile; two counts of possession with the intent to deliver the controlled substance Alprazolam; and one count of possession with the intent to deliver the controlled substance Oxycodone. The prosecutor presented the case under a felony-murder theory, with the Oxycodone charge as the underlying felony.⁵

The case was tried before a jury starting on February 17, 2016, and concluded on February 19, 2016.⁶ The prosecutor presented testimony from nineteen witnesses.

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Petitioner did not testify and did not call any witnesses. The jury submitted seven questions to the trial court during its deliberations. The trial court responded to each of the questions. The jury ultimately returned a verdict convicting Petitioner of first-degree murder, holding hostage to defile, and two counts of possession with the intent to deliver the controlled substance Alprazolam.⁷ Following the denial of post-trial motions the Petitioner filed this appeal. While the appeal was pending the parties filed a joint motion asking this Court to stay the appeal,⁸ and permit them to supplement the record on the issue of the trial judge responding to seven jury questions.⁹ By order entered January 25, 2017, this Court granted the motion and remanded the case "for the limited purpose of establishing the record on issues related to the assignment of error of whether petitioner's rights were violated when the circuit court answered a series of...