STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent June 28, 2013 

RORY L. PERRY II, CLERK 

vs) No. 12-1120 (Ritchie County 12-F-20) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Christopher T. Wolfe 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Christopher T. Wolfe, by counsel Eric K. Powell, appeals the Circuit Court of 

Ritchie County’s order entered July 30, 2012, sentencing him to six months to two years of 

custody. The State, by counsel Andrew D. Mendelson, filed a response in support of the circuit 

court’s order. Petitioner filed a reply. 

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. 

On January 4, 2011, Tracey Wolfe, petitioner’s brother, made a telephone call from jail to 

the number where petitioner lived with his mother. During the call, which was intercepted by 

corrections officials, he spoke to someone he referred to as “Chris” and “Critter,”1 and described a 

“cold recipe” to “Chris,” who had asked for the recipe. Petitioner also discussed passing along the 

recipe to someone named “Butch.” The next day, Tracey Wolfe placed a letter dated January 4, 

2011, into prison mail to his mother that included a document with the heading “Critter’s Cold” 

with instructions for making a substance out of Sudafed pills, among other ingredients, and 

referred to the end-product as “dope.” Law enforcement officers later testified that the “Critter’s 

Cold” recipe appeared to be instructions for manufacturing methamphetamine. The letter was 

intercepted by officials at the correctional facility and given to a West Virginia State Trooper. The 

trooper went to the home of petitioner and his mother and, with their consent, searched the home 

but found no incriminating evidence. 

In January of 2012, a grand jury returned an indictment charging petitioner with one count 

of conspiracy to operate or attempt to operate a clandestine drug laboratory. In March of 2012, 

petitioner was convicted on the same charge after a jury trial. Both parties agree that the only 

bases for the conviction were the telephone conversation on January 4, 2011, and the letter dated 

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The record reflects that “Critter” is a nickname for petitioner. 

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January 4, 2011. In May of 2012, the circuit court sentenced petitioner to six months to two years 

of placement at the Anthony Center for Young Adult Offenders for completion of its program 

requirements, whereupon he is to be returned to the circuit court for further proceedings. 

“This Court reviews the circuit court's final order and ultimate disposition under 

an abuse of discretion standard. We review challenges to findings of fact under a 

clearly erroneous standard; conclusions of law are reviewed de novo.” Syllabus 

Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996). 

Syl. Pt. 1, State v. Murray, 220 W.Va. 735, 649 S.E.2d 509 (2007). 

Petitioner first argues that the evidence below was “manifestly inadequate” because no 

evidence showed that he possessed or assembled methamphetamine. Further, the evidence 

showed he was only to pass along information to an alleged “Butch,” but no evidence showed he 

would manufacture the methamphetamine himself. Finally, petitioner argues that the State failed 

to establish that he was even a participant in the telephone conversation. 

“‘In order for the State to prove a conspiracy under W. Va.Code, 61–10–31(1), it 

must show that the defendant 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, State v. Less, 170 W.Va. 259, 294 S.E.2d 

62 (1981).” Syl. Pt. 3, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991). 

Syl. Pt. 5, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009). We hold that the jury had 

adequate grounds to find that there was an agreement to operate or attempt to operate a 

clandestine drug laboratory based upon petitioner’s brother calling his residence, calling him by 

name, and petitioner making a request that elicited information describing how to produce 

methamphetamine. Additionally, a member of the conspiracy, namely Tracy Wolfe, took an overt 

act to effect the conspiracy by placing the directions for manufacturing methamphetamine into the 

mail. Petitioner’s reliance on State v. Cummings, 220 W.Va. 433, 647 S.E.2d 869 (2007), is 

misguided because that case dealt with a conviction “arising from the possession of illegal 

contraband . . .” but no evidence supported the defendant having knowledge of the contraband in 

a motor vehicle that the defendant was driving, which someone else owned. Id. at 440. Cummings 

does not apply here because this case does not arise from the possession of illegal contraband, but 

rather arises from a telephone conversation and letter describing how to manufacture 

methamphetamine. 

Second, petitioner argues that his constitutional rights against double jeopardy have been 

violated because “operating a clandestine drug laboratory” and “attempt[ing] to operate a 

clandestine drug laboratory” are two separate offenses; therefore, his conspiracy charge for 

“conspiracy to operate or attempt to operate a clandestine drug laboratory” is actually two charges 

for the same offense. Petitioner admits that, because he never scheduled a hearing to address this 

issue after moving for a new trial on the basis of this double jeopardy claim, the issue must be 

reviewed for plain error. “To trigger application of the ‘plain error’ doctrine, there must be (1) an 

error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, 

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integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3, 

459 S.E.2d 114 (1995). Further, 

“‘[t]he Double Jeopardy Clause in Article III, Section 5 of the West Virginia 

Constitution, provides immunity from further prosecution where a court having 

jurisdiction has acquitted the accused. It protects against a second prosecution for 

the same offense after conviction. It also prohibits multiple punishments for the 

same offense.’” Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 

529 (1977). Syl. Pt. 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992). 

Syl. Pt. 2, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009). Here, petitioner attempts to 

argue that he somehow received multiple punishments for the same offense due to the statute 

defining the crime as “operat[ing] or attempt[ing] to operate a clandestine drug laboratory . . .” 

but he was charged with only the crime of conspiracy and received only one sentence. W. Va. 

Code § 60A-4-411. We hold that no violation of double jeopardy occurred here. 

The Court has carefully considered the merits of each of petitioner’s arguments as set 

forth in his brief. The circuit court did not err in convicting petitioner for conspiracy to operate or 

attempt to operate a clandestine drug laboratory. For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 28, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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