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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent,

vs.) No. 22-0460 (Fayette County CC-10-2021-F-230)

Nicole L. Semans, 

Defendant Below, Petitioner 

MEMORANDUM DECISION

Petitioner Nicole L. Semans appeals the May 16, 2022, sentencing order of the Circuit 

Court of Fayette County. Respondent State of West Virginia filed a response in support of the 

circuit court’s order.1 Upon our review, finding no substantial question of law and no prejudicial 

error, we determine that oral argument is unnecessary and that a memorandum decision affirming 

the circuit court’s order is appropriate. See W. Va. R. App. P. 21(c). On appeal, petitioner alleges 

the circuit court’s jury instructions constructively amended the indictment.

On December 26, 2020, petitioner drove her three codefendants to a residence in Oak Hill, 

West Virginia. Two of petitioner’s codefendants entered the residence and returned to the vehicle 

with personal property stolen from the victim’s home. The victim’s neighbor witnessed the 

burglary in progress and called 9-1-1. After her codefendants returned to her vehicle, petitioner 

drove away from the scene of the crime and dropped off the codefendants at another location. 

Petitioner was later identified and was charged with conspiracy to commit burglary and grand 

larceny. 

At trial, petitioner proposed the following instruction: 

The jury is instructed that, in order for you to find the Defendant guilty of 

conspiracy, as charged in the indictment in this case, you must find that the 

Defendant conspired to commit the offense of burglary and conspired to commit 

the offense of grand larceny. If you find that the Defendant conspired to commit 

only one of the two offenses, burglary or grand larceny, but not both, then you must 

find the Defendant Not Guilty of conspiracy. (Emphasis added).

1 Petitioner appears by counsel Steven K. Mancini. Respondent appears by Attorney 

General Patrick Morrisey and Assistant Attorney General R. Todd Goudy.

FILED

January 25, 2024

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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The court refused petitioner’s proposed conspiracy instruction, reasoning that the crime of 

conspiracy only required evidence that petitioner conspired to commit a felony, which may be 

proven by evidence that petitioner conspired to commit burglary and/or grand larceny. The court 

instructed the jury as follows:

[t]he offense charged in Count one of the indictment in this case is conspiracy to 

commit a felony, which is a felony offense one of the following two verdicts may 

be returned by you, the jury, under Count one of the indictment: guilty of 

conspiracy to commit the felony offense of burglary and/or grand larceny, a felony, 

2- not guilty.

(Emphasis added).

Petitioner objected to the circuit court’s jury instruction alleging that it constructively 

amended the language of the conspiracy charge in the indictment. Petitioner also objected to the 

conspiracy instruction because it stated if the jury had reasonable doubt about her guilt, it “may” 

find petitioner not guilty. Petitioner asked the court to replace “may” with “shall,” but the court 

overruled this objection. Petitioner alleges this word choice was erroneous.

Ultimately, the jury convicted petitioner of conspiracy. At sentencing, the court suspended 

petitioner’s one-to-five-year prison sentence, placed her on probation, and ordered her to pay 

restitution to the victim. Petitioner appeals from the May 16, 2022, sentencing order.

In her first assignment of error, petitioner alleges the circuit court erred by instructing the 

jury that it could convict her of conspiracy if the State proved she conspired to commit “burglary 

and/or grand larceny,” rather than “burglary and grand larceny” as alleged in the indictment. 

(Emphasis added). Petitioner claims this instruction constructively amended the indictment and 

“effectively made the State’s burden of proof fifty percent easier.” Petitioner also alleges, with 

little explanation, that this amendment increased her burden of proof at trial, undermined the notice 

function of the indictment, and adversely affected her cross-examination of State witnesses, which 

“would likely have been different” had she been aware of the amendment before the State rested 

its case.

This Court defers “to a trial court’s discretion concerning the specific wording of [a jury] 

instruction, and the precise extent and character of any specific instruction will be reviewed only 

for an abuse of discretion.” Syl. Pt. 4, in part, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 

(1995). The trial court’s refusal to give the instruction requested by petitioner 

is reversible error only if: (1) the instruction is a correct statement of 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, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). Further, the circuit court 

may amend an indictment, “provided the amendment is not substantial, is sufficiently definite and 

certain, does not take the defendant by surprise, and any evidence the defendant had before the 
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amendment is equally available after the amendment.” Syl. Pt. 2, in part, State v. Adams, 193 W. 

Va. 277, 456 S.E.2d 4 (1995). 

The circuit court properly instructed the jury that petitioner could be convicted of 

conspiracy if she conspired to commit burglary “and/or” grand larceny. The crime of conspiracy 

requires evidence that petitioner conspired with at least one of her codefendants “to commit any

offense against the State,” i.e., either burglary or grand larceny. W. Va. Code § 61-10-31 (emphasis 

added). To prove petitioner was guilty of conspiracy, the State must prove petitioner “agreed with 

others to commit an offense against the State and that some overt act was taken by a member of 

the conspiracy to effect the object of that conspiracy.” Syl. Pt. 4, in part, State v. Less, 170 W. Va. 

259, 294 S.E.2d 62 (1981) (emphasis added). In this case, the State proved that petitioner intended 

to commit burglary and/or grand larceny when she drove her codefendants to the victim’s 

residence, and her codefendants committed an overt act to effect the object of this conspiracy when 

they burglarized and stole items found within the residence. The conspiracy instruction was a 

correct statement of law, and the record does not support petitioner’s contention that the instruction 

impaired petitioner’s ability to present a defense. 

Further, we do not find any indication in the record that petitioner was misled, subjected to 

any additional burden of proof, or in any way prejudiced by the court’s instruction on the elements 

of conspiracy. Burglary and grand larceny were both components of a multi-object conspiracy, 

and the circuit court’s conspiracy instruction did not allow “the jury to convict [her] of a crime for 

which [she] was not indicted.” State v. Corra, 223 W. Va. 573, 581, 678 S.E.2d 306, 314 (2009) 

(citing Syl. Pt. 1, State v. Blankenship, 198 W. Va. 290, 480 S.E.2d 178 (1996)). Thus, the circuit 

court’s conspiracy instruction was merely an “amendment of form,” and was not a constructive 

amendment of the indictment. Blankenship at 292, 480 S.E.2d at 180, Syl. Pt. 4, in part.

Finally, petitioner claims the conspiracy instruction was erroneous because it stated the 

jury “may,” rather than “shall,” find petitioner not guilty if it had reasonable doubt about her guilt. 

Jury instructions “cannot be dissected on appeal; instead, the entire instruction is looked at when 

determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to 

the jury, so long as the charge accurately reflects the law.” Guthrie, 194 W. Va. at 170, 461 S.E.2d 

at 664, Syl. Pt. 4, in part. 

After reviewing the jury instructions as a whole, this Court finds they correctly stated the 

elements of conspiracy. The record does not reflect that this instruction confused the jury about 

the State’s burden of proof or petitioner’s right to a presumption of innocence. Thus, petitioner’s 

assignment of error is unavailing.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: January 25, 2024

CONCURRED IN BY:
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Chief Justice Tim Armstead

Justice Elizabeth D. Walker

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn