1 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

Plaintiff Below, Respondent

vs.) No. 22-0267 (Harrison County 21-F-124) 

Edward Y., 

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Edward Y. appeals the Circuit Court of Harrison County’s March 7, 2022, order 

sentencing him following his convictions for incest, second-degree sexual assault, and sexual 

abuse by a parent, guardian, custodian or person in a position of trust.

1 On appeal, he argues that 

he should have been acquitted after the circuit court improperly excused a juror during his trial. 

Upon our review, 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. 

Petitioner was indicted on twenty-four counts: eight counts each of incest, second-degree 

sexual assault and sexual abuse by a parent, guardian, custodian, or person in a position of trust.

The charges in the indictment stemmed from various sexual offenses against his niece, who was 

between the ages of twelve and sixteen at all times relevant to the indictment, who resided in his 

home, and over whom he had been granted a guardianship. 

Petitioner proceeded to a jury trial on the counts alleged in the indictment. After the judge 

instructed the jurors, the court recessed for the day. On the following day, before deliberations 

occurred, one of the jurors advised the court that she had concerns about whether or not she could 

be fair and impartial based upon the instructions. After the judge conducted an inquiry with the 

juror and consulted with counsel, the judge excused the juror for cause and called the first alternate 

juror. Prior to the juror’s dismissal, petitioner’s counsel responded “I don’t have a position” about 

the dismissal. After the juror was dismissed, however, petitioner’s counsel stated, “Yes, actually, 

since I probably should do this to preserve it for appeal, I object to the dismissal of that juror.” The 

1 Petitioner appears by counsel Jeremy B. Cooper. Respondent appears by counsel Attorney 

General Patrick Morrisey and Assistant Attorney General William E. Longwell. We note that 

initials are used where necessary to protect the identities of those involved in this case. See W. Va. 

R. App. P. 40(e). 

 

FILED

September 15, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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case proceeded to verdict with an alternate juror and petitioner was ultimately convicted on all 

counts. 

Petitioner appeals following entry of the court’s March 7, 2022, sentencing order, arguing 

that the circuit court erred by dismissing the juror for inability to serve, over petitioner’s objection, 

prior to the verdict. Respondent claims that petitioner failed to present a timely or sufficient 

objection to the discharge of the juror. Upon our review, petitioner’s claim that he objected to the

dismissal of the juror is belied by the record on appeal, as the record demonstrates that petitioner 

made no objection to the dismissal until after the juror had already been excused. Accordingly, his 

objection was not timely. Moreover, petitioner’s untimely objection did not set forth the 

substantive basis for the objection, and, therefore, was deficient. “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.” Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470 

S.E.2d 162 (1996). Although petitioner presented an untimely and deficient objection and we could 

find that he waived his opportunity to present this argument on appeal, we nevertheless find that 

his argument fails on the merits as well.

“Matters of qualifications of jurors are left to the discretion of the trial court and will not 

be disturbed, absent an abuse of the discretion.” State v. Crouch, 178 W. Va. 221, 224, 358 S.E.2d 

782, 785 (1987). Additionally, 

“[w]hen considering whether to excuse a prospective juror for cause, a trial 

court is required to consider the totality of the circumstances and grounds relating 

to a potential request to excuse a prospective juror, to make a full inquiry to examine 

those circumstances and to resolve any doubts in favor of excusing the juror.”

Syl. Pt. 3, O’Dell v. Miller, 211 W. Va. 285, 565 S.E.2d 407 (2002). In fact, Rule 24 of the West
3

Virginia Rules of Criminal Procedure2 and West Virginia Code § 62-3-33 provide authority for the 

court to utilize alternate jurors. 

Petitioner’s argument that the juror should not have been dismissed is without merit. When 

the juror raised concerns about her ability to continue to serve on the panel, the court made a full 

inquiry and the juror responded that she was uncertain as to whether she could be fair and impartial.

Accordingly, the court dismissed the juror. Certainly, had the juror expressed this concern during 

voir dire, the juror would not have been selected for the jury panel. O’Dell, 211 W. Va. at 290, 

565 S.E.2d at 412 (“Jurors who on voir dire of the panel indicate possible prejudice should be 

excused, or should be questioned individually either by the court or by counsel to precisely 

determine whether they entertain bias or prejudice for or against either party, requiring their 

excuse.” (quoting Syl. Pt. 3, State v. Pratt, 161 W. Va. 530, 244 S.E.2d 227 (1978))). Given the 

juror’s statement that she was unsure that she could be fair and impartial, we decline to find that 

the court abused its discretion in excusing the juror. This is especially true where, as was the case 

in petitioner’s trial, the jurors had not yet deliberated and an alternate juror was readily available 

to ensure that a full jury panel could proceed with deliberations. Accordingly, petitioner is entitled 

to no relief.

For the foregoing reasons, we affirm.

2 Rule 24(c) of the West Virginia Rules of Criminal Procedure provides:

Alternate Jurors. The court may direct that more jurors in addition to the regular 

jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order 

in which they are called shall replace jurors who, prior to the time the jury retires 

to consider its verdict, become or are found to be unable or disqualified to perform 

their duties. Alternate jurors shall be drawn in the same manner, shall have the same 

qualifications, shall be subject to the same examination and challenges, shall take 

the same oath, and shall have the same functions, powers, facilities and privileges 

as the regular jurors. An alternate juror who does not replace a regular juror shall 

be discharged after the jury retires to consider its verdict. Each side is entitled to 

one peremptory challenge in addition to those otherwise allowed by law if one or 

two alternate jurors are to be impaneled, two peremptory challenges if three or four 

alternate jurors are to be impaneled, and three peremptory challenges if five or six 

alternate jurors are to be impaneled. The additional peremptory challenges may be 

used against an alternate juror only, and the other peremptory challenges allowed 

by these rules may not be used against an alternate juror.

3 West Virginia Code § 62-3-3, in relevant part, provides:

Whenever, in the opinion of the court the trial is likely to be a protracted one, the 

court may direct that not more than four jurors, in addition to the regular jury, be 

called and impanelled to sit as alternate jurors. Alternate jurors in the order in which 

they are called shall replace jurors who, prior to the time the jury retires to consider 

its verdict, become unable or disqualified to perform their duties.
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Affirmed.

ISSUED: September 15, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton

Justice C. Haley Bunn