No. 21568 - State of West Virginia v. Lisa A. Nelson
Workman, Chief Justice, dissenting:
I must dissent. The majority obviously felt sympathy for the
Appellant, who does indeed strike the profile of a person whose
chief character flaw seems to be the desire to "help" her friends.See footnote 1
However, judicial compassion must be temperedSee footnote 2 not only by the goal of consistency and even-handedness, but also with some concern for the seriousness of the crime of voting fraud.See footnote 3
The unrefuted evidence was that the Appellant, in an effort to help a close friend, Ms. Sharon Ison, obtain a position as poll worker, contacted her in Wayne County, West Virginia, and suggested that she misrepresent her residency in order to register to vote in Cabell County.See footnote 4 The evidence further reflected that the Appellant completed the registration form with information she knew to be false, that the voter registration was filed in the County Clerk's Office, and that Ms. Ison did serve as a Cabell County poll worker.
Ms. Ison testified that she gave the Appellant all the
information by phone, but had no further involvement in completing
or filing the application. In addition, a handwriting expert,
Trooper K. H. McDowell, testified that he examined the handwriting
on the registration card and was able to conclude that the
Appellant filled out the hand-printed areas of the card based on
the Appellant's handwriting samples. Trooper McDowell testified
that Ms. Ison probably did not sign the registration card and the
trooper could only conclude that the Appellant may have signed Ms.
Ison's name to the card.
On February 3, 1988, a voter registration card bearing Ms.
Ison's name and purportedly signed by Ms. Ison was offered for
registration at the County Clerk's Office in Cabell County. The
card had been notarized by Deputy Greg Cook of the Cabell County
Sheriff's Office. Deputy Cook testified that he normally would not
notarize a card without the presence of the person who signed the
document, but acknowledged that he sometimes notarized documents
for persons he knew without the presence of the actual signer. The
deputy had no recollection of this particular voters registration
card. The evidence revealed that Deputy Cook worked with the
In the fall of 1990, following the receipt of an anonymous
letter to the Cabell County Sheriff's Office concerning
irregularities in the signature of Sharon Ison on voting records,
Corporal Robert Adkins asked Ms. Ison whether she lived in
Huntington at the address given on the voters registration card.
Ms. Ison apparently did not immediately respond. After the
corporal's inquiry, the Appellant advised Ms. Ison to tell police
that she lived at the Huntington address.
Ms. Ison apparently did not listen to the Appellant's advice and told police that she did not live in Huntington. Subsequently, the Appellant angrily telephoned Ms. Ison and told her that she had done Ms. Ison a favor and that Ms. Ison was not a very good friend because she would not say that she lived in Huntington.
Under these circumstances, it is rather fantastical for the
majority to conclude that no logical inference can be drawn from
the Appellant filling out Ms. Ison's form. It took no leap of
logic for the jury to conclude that the Appellant generated the
idea for the fraudulent voter registration, filled out the voter
registration application and saw to it that it was filed.
It is the law of West Virginia that a general indictment as a
principal in the first degree shall be sufficient to sustain a
conviction as an aider and abettor or as an accessory before the
fact. The circuit court so instructed the jury without objection.
Consequently, it was unnecessary for the state to prove that
the Appellant actually signed Ms. Ison's name to the voter
registration application. Even if such proof was needed, there was
overwhelming circumstantial evidence upon which the jury could have
concluded that the Appellant did sign the form.
The majority has upheld far more serious criminal convictions
than this on the basis of far less circumstantial evidence. In
this case, however, it appears that fraudulent voter registration
has been treated far too lightly by the majority.
Footnote: 1In State v. Nelson, No. 21273 (W. Va. filed July 22, 1993) this same Defendant, while working for the Huntington Police Department, tried to help a friend by withholding information regarding the friend's criminal record from a prospective employer who presented Nelson with an authorization for the release of the friend's criminal record. That favor resulted in a criminal conviction, which this Court upheld.
Footnote: 2It should be noted that although the Appellant was given a sentence of one-year in the county jail, the sentence was suspended and she was placed on supervised probation.
Footnote: 3West Virginia Code § 3-2-42 (1990) provides, in pertinent part:
(a) A person who willfully provides false
information concerning a material matter or
thing in a uniform statewide application for
registration, reregistration or change of
registration, under oath or affirmation
lawfully administered, shall be deemed guilty
of perjury; one who induces or procures
another person to do so shall be deemed guilty
of subordination of perjury.
(b) A person who knowingly offers any application for registration, reregistration or transfer of registration when the applicant therein is not qualified to register or transfer his registration, or any person who knowingly administers an oath or affirmation
to an applicant for registration,
reregistration or change of registration when
the application contains false information
concerning a material or thing, or any person
who falsely represents that an oath or
affirmation was executed by an applicant for
registration, reregistration or change of
registration, shall be guilty of a felony
. . . .
Footnote: 4Appellant explained to Ms. Ison that in order to serve as a poll clerk, one must be registered to vote in the county where she would serve. In addition, the Appellant had previously counselled with and advised Ms. Ison on falsifying her residency in order to obtain municipal employment at the Huntington Civic Center.