STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent May 24, 2013 

RORY L. PERRY II, CLERK 

vs.) No. 12-0338 (Putnam County 11-F-84) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Tracy L. Wright, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Tracy L. Wright, by counsel David Moye, appeals the “Sentencing Order” 

entered by the Circuit Court of Putnam County on January 19, 2012, following her convictions 

for murder of a child by a parent by refusal or failure to supply necessities and child neglect 

resulting in death by a parent, guardian, or custodian. The State of West Virginia, by counsel 

Kristina Raynes, has filed its response. 

The 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. 

A Putnam County Grand Jury indicted petitioner on one count of murder of a child by a 

parent by refusal or failure to supply necessities and one count of child neglect resulting in death 

by a parent, guardian, or custodian. Following a jury trial, petitioner was found guilty on both 

counts. Petitioner was sentenced in January of 2012 to a term of incarceration of life with mercy 

for murder of a child by a parent by refusal or failure to supply necessities and a term of 

incarceration of three to fifteen years for child neglect resulting in death by a parent, guardian, or 

custodian. 

On appeal, petitioner argues that the circuit court erred by not advising the jury that a 

guilty verdict could only be returned on one of the counts. Petitioner argues the fact that one 

count requires intent to cause death and the second count requires neglect causing death creates a 

contradiction. Petitioner argues the circuit court should have instructed the jury that if they 

believed there was intent to cause the death of her daughter, then there could be no neglect. 

Petitioner argues when it is clear that an erroneous instruction was given and it cannot be 

declared beyond a reasonable doubt that such instruction in no way contributed to the conviction 

or outcome of the trial, the conviction must be reversed and a new trial granted. Petitioner also 

argues that plain error exists because the circuit court failed to instruct the jury that they had to 

choose between the counts in the indictment even though counsel did not object at trial. 

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The State argues that petitioner failed to properly object to the circuit court’s jury 

instruction that the jury could find petitioner guilty on both counts pursuant to Rule 30 of the 

West Virginia Rules of Criminal Procedure and State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 

(1996). The State argues that pursuant to State v. Miller, 194, W.Va. 3, 459 S.E.2d 114 (1995), 

petitioner’s counsel waived her right by agreeing to the jury instruction and by failing to 

objection to the verdict form. The State argues that pursuant to State v. Day, 225 W.Va. 794, 

696 S.E.2d 310 (2010), petitioner’s counsel had multiple opportunities to challenge the jury 

instruction, submitted his own language for the charge on the count for the neglect charge, and 

thereby deliberately and through participation, waived this right. 

Based on petitioner’s failure to object in the trial court, this Court must review 

petitioner’s argument under the “plain error” doctrine. This Court has stated: 

Under the “plain error” doctrine, “waiver” of error must be distinguished from 

“forfeiture” of a right. A deviation from a rule of law is error unless there is a 

waiver. When there has been a knowing and intentional relinquishment or 

abandonment of a known right, there is no error and the inquiry as to the effect of 

a deviation from the rule of law need not be determined. By contrast, mere 

forfeiture of a right-the failure to make timely assertion of the right-does not 

extinguish the error. In such a circumstance, it is necessary to continue the inquiry 

and to determine whether the error is “plain.” To be “plain,” the error must be 

“clear” or “obvious.” 

Syl. Pt. 8, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). The Court finds that petitioner’s 

first assignment of error is without merit. The record reflects that both parties submitted 

proposed jury instructions and petitioner’s counsel participated in finalizing the jury charge with 

the circuit court and the State. The record also reflects that petitioner’s counsel knowingly and 

intentionally agreed to the proposed charge and waived any objection to the verdict form when 

petitioner’s counsel stated that there were “no objections to the verdict form” and accepted the 

proposed charge. 

Next, petitioner argues that the prosecuting attorney committed prejudicial error during 

closing arguments by stating “there is evidence to support a guilty verdict on both. You do not 

have to choose. You don’t have to pick one or the other. There has been evidence to prove to you 

beyond a reasonable doubt that she is guilty on both of those charges.” Specifically, petitioner 

argues that the jury was misled by the statement, “You don’t have to choose.” The State argues 

that this argument is dependent on the first assignment of error. The State argues since petitioner 

waived her right to object, the State argued the law exactly the way that the trial court instructed 

it. The Court declines to address petitioner’s second assignment of error because this Court 

determined above that petitioner waived her objection to the jury instructions. Logically, 

petitioner cannot argue prejudicial error when the State argued the law as agreed to by 

petitioner’s counsel and has failed to assert the error constituted plain error. 

For the foregoing reasons, we affirm. 

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Affirmed. 

ISSUED: May 24, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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