State of West Virginia v. Carli Renae Reed ( 2022 )


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  •                                                                                  FILED
    October 17, 2022
    released at 3:00 p.m.
    STATE OF WEST VIRGINIA                        EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    SUPREME COURT OF APPEALS                             OF WEST VIRGINIA
    State of West Virginia,
    Respondent
    vs.) No. 21-0227 (Barbour County 20-F-28)
    Carli Renae Reed,
    Petitioner
    MEMORANDUM DECISION
    Petitioner Carli Renae Reed (“Petitioner”), 1 appeals the Circuit Court of
    Barbour County’s February 19, 2021, order sentencing her to forty years in prison after a
    jury found her guilty of second-degree murder. The victim was Petitioner’s husband,
    Marcus Fagons (“Mr. Fagons”). The dispositive issue Petitioner raises in this appeal is
    whether the circuit court erred by refusing to give a jury instruction on the defense of
    accident. Petitioner’s trial testimony was that she accidentally shot Mr. Fagons. The State
    vigorously cross-examined her on this issue and argued that she intentionally shot Mr.
    Fagons because he was having an affair and wanted a divorce. The circuit court refused to
    give the requested accident instruction, finding that it was “not necessary and if they [the
    jury] believe it was an accident then there will not be a crime.”
    Upon review, we conclude that under our well-established caselaw, the
    circuit court abused its discretion by failing to give Petitioner’s requested accident
    instruction. See State v. Evans, 
    172 W. Va. 810
    , 
    310 S.E.2d 877
     (1983). Therefore, we
    reverse Petitioner’s conviction and sentencing order, and remand this case for a new trial.
    We find that this case satisfies the “limited circumstances” requirement of Rule 21(d) of
    the Rules of Appellate Procedure and is appropriate for disposition by a memorandum
    decision.
    Petitioner shot and killed Mr. Fagons on August 15, 2019. They had been
    married for approximately three years at that time. Petitioner was indicted by a grand jury
    for first-degree murder on June 15, 2020.
    Petitioner is represented by counsel Hunter B. Mullens, C. Brian Matko, and
    1
    Matthew L. Ervin. The State is represented by counsel Patrick Morrisey and Mary Beth
    Niday.
    1
    Petitioner’s trial began on September 16, 2020, and lasted for seven days.
    The State’s theory of the case was that Petitioner intentionally shot and killed Mr. Fagons
    because he was having an affair and wanted a divorce. During its opening statement, the
    State asserted that Petitioner and Mr. Fagons had a “toxic relationship,” and that “[t]he
    truth is going to be that [Petitioner] was angry, that she was frustrated that her husband had
    found someone else, that her husband was having an affair and wanted to leave her. And
    for that reason, she took his life.”
    Conversely, Petitioner testified that she did not intend to kill Mr. Fagons.
    She stated that on the day of the shooting, she and Mr. Fagons discussed getting a divorce.
    Petitioner testified that after this discussion, she was having suicidal thoughts and decided
    to kill herself. She stated that Mr. Fagons’s holstered gun was on the nightstand in their
    bedroom; that she went into the bedroom where Mr. Fagons was lying on the bed; that she
    grabbed the gun with the intention of killing herself and that the gun went off. Petitioner
    claimed that after the gun went off, she was disoriented and confused, but that Mr. Fagons
    was lying on the bed with his eyes shut and that he was breathing. Petitioner and her
    counsel then had the following exchange:
    Q. Did you mean to shoot Marcus?
    A. No.
    Q. Was it an accident?
    A. Yeah.
    Q. And what were you hoping when you were in shock that
    you had missed as far as the gun missed when it went off, that
    it had missed Marcus?
    A. Yeah. And I didn’t know how to help him, and I knew that
    mom would know what to do.
    After describing the aftermath of the shooting, including being in shock and
    seeking help from her mother who lived five minutes away, Petitioner’s counsel again
    asked her whether the shooting was intentional:
    Q. And once again I’m going to ask you, did you mean, intend
    to shoot Marcus?
    A. No. I meant to kill myself.
    Q. Was it an accident?
    2
    A. It was.
    During cross-examination, the State repeatedly asked Petitioner whether she
    intended to shoot Mr. Fagons:
    Q. You weren’t taking the gun out to kill Marcus, right?
    A. No.
    Q. So you weren’t - - at that time you didn’t have - - you
    weren’t overcome by any form of like emotions to kill him,
    right?
    A. No.
    Q. Okay. Do you feel that you were relatively calm when you
    were doing that?
    A. I was pretty hysterical actually because I was going to kill
    myself. You know I was crying and I thought, you know, this
    was it for me.
    Q. So your intent at that point was to commit suicide?
    A. Correct.
    Q. Your specific intent at that time was to kill yourself?
    A. Yes.
    Q. And you fully remember doing that?
    A. Yes.
    Q. So you did not shoot Marcus because of this prior alleged
    abuse?
    A. No.
    Q. You shot him because you’re saying it was an accident?
    A. Correct.
    3
    On redirect examination, Petitioner’s counsel again asked Petitioner whether
    the shooting was an accident:
    Q. Now Carli, the prosecutor was questioning what happened
    on the 15th. Were you or were you not trying to commit suicide
    that day?
    A. I was.
    Q. Was this an accident?
    A. It was.
    The circuit court held a brief conference on its proposed jury instructions on
    the second to last day of the trial. Prior to the trial, Petitioner submitted a number of
    proposed jury instructions to the circuit court, including an accident instruction. It
    provided:
    The defendant has presented evidence that the death of
    [Mr. Fagons] was an accident. While it is never the defendant’s
    burden to prove anything, if you find the defendant’s evidence
    of accident to be credible, then the State must prove beyond a
    reasonable doubt that the death was not accidental. If the State
    has not met this burden, then you must find the defendant not
    guilty of the offense charged.
    During the jury instruction conference, the circuit court invited the parties to
    note any objections to the instructions it had prepared. Counsel for Petitioner reminded
    the circuit court that Petitioner had “submitted a charge on accident . . . based on
    [Petitioner’s] testimony that it was an accidental shooting.” The circuit court replied:
    I saw the instruction on accident and I specifically left
    it out. The Court considered that and deemed that it was not
    necessary and if they [the jury] believe it was an accident then
    there will not be a crime. So accident being something less than
    involuntary manslaughter they would assume. So a complete
    accident I don’t think there’s any real caselaw on what should
    happen in an accident except for coming in and saying it was
    an accident and seeing how the jury takes that. So[,] I think
    that’s a common usage much more than a legal usage. And I
    think that accident would necessarily be included in a not
    guilty.
    4
    Following the circuit court’s explanation, Petitioner’s counsel objected to the court’s
    ruling.
    The parties’ closing arguments focused largely on Petitioner’s testimony that
    the shooting was accidental. The State noted that Petitioner claimed that the shooting was
    an accident and argued that this testimony was not credible. 2 During Petitioner’s closing
    argument, her counsel told the jury that Petitioner was in a “fragile” state of mind due to
    the divorce discussion, that she grabbed the gun from the nightstand with the intention of
    committing suicide, and that the gun accidentally went off. Petitioner’s counsel told the
    jury “[y]ou can also find her not guilty if you believe it was an accident.”
    The jury found Petitioner guilty of second-degree murder. 3 The circuit court
    entered an order sentencing her to forty years in prison. This appeal followed.
    We review a circuit court’s refusal to offer a requested jury instruction under
    an abuse of discretion standard. In syllabus point one of State v. Hinkle, 
    200 W. Va. 280
    ,
    
    489 S.E.2d 257
     (1996), we held: “As a general rule, the refusal to give a requested jury
    instruction is reviewed for an abuse of discretion. By contrast, the question of whether a
    jury was properly instructed is a question of law, and the review is de novo.” 4 Additionally,
    we have held that “[w]hether facts are sufficient to justify the delivery of a particular
    instruction is reviewed by this Court under an abuse of discretion standard. In criminal
    cases where a conviction results, the evidence and any reasonable inferences are considered
    in the light most favorable to the prosecution.” Syl. Pt. 12, State v. Derr, 
    192 W. Va. 165
    ,
    
    451 S.E.2d 731
     (1994). 5 With the foregoing in mind, we turn to the parties’ arguments.
    2
    The State’s closing argument included the following statements: 1) “she is basing
    her case on accident;” 2) “no person accidentally shoots their spouse and leaves them like
    that;” 3) “she relies on [that] it was an accident;” 4) “she never said it was an accident until
    months later;” 5) “nothing points to [the conclusion that] this was an accident;” 6) “this is
    no accident . . . and that story she told you of an accident, it is nothing more than a lie.”
    The circuit court instructed the jury on the following offenses: first-degree murder,
    3
    second-degree murder, voluntary manslaughter, and involuntary manslaughter.
    4
    Generally, when reviewing a challenge to jury instructions, we consider the
    instructions given as a whole and not in isolation to determine whether the instructions
    adequately state the law and provide the jury with an ample understanding of the issues
    and the law. State v. Bradshaw, 
    193 W. Va. 519
    , 543, 
    457 S.E.2d 456
    , 480 (1995).
    5
    This Court has also addressed the degree of evidence necessary to support the
    giving of a jury instruction: “If there be evidence tending in some appreciable degree to
    support the theory of proposed instructions, it is not error to give such instructions to the
    5
    Petitioner has asserted numerous assignments of error. 6 We find that the
    dispositive issue is Petitioner’s contention that the circuit court erred by refusing to give
    her requested accident instruction. Petitioner asserts that: 1) “sufficient testimony was
    provided at trial to support a defense of accident;” 2) “without the instruction, the jury is
    unaware that accident is a recognized defense and the trial court’s failure to give the
    instruction minimized the weight of the testimony;” and 3) “the trial court was mistaken
    on whether accident was a legal defense to the charge of murder.” We agree.
    It is well-settled that “in criminal cases a defendant generally is entitled to a
    jury charge that reflects any defense theory for which there is a foundation in the evidence.”
    State v. LaRock, 
    196 W. Va. 294
    , 308, 
    470 S.E.2d 613
    , 627 (1996). This Court has
    previously considered whether a defendant’s testimony that a shooting was accidental is
    sufficient to support a request for an accident instruction.
    In State v. Evans, 
    172 W. Va. 810
    , 
    310 S.E.2d 877
    , the defendant testified
    that the victim was handling one of his guns and that he asked the victim to hand the gun
    jury, though the evidence be slight, or even insufficient to support a verdict based entirely
    on such theory.” Syl. Pt. 4, Coleman v. Sopher, 
    201 W. Va. 588
    , 
    499 S.E.2d 592
     (1997)
    (cleaned up).
    6
    Petitioner argues that the circuit court’s jury instruction on the defense of battered
    woman’s syndrome was erroneous. Petitioner contends that the court’s instruction was
    “insufficient, failed to adequately instruct the jury on the law regarding battered woman’s
    syndrome and was misleading.” Additionally, Petitioner asserts that the circuit court
    committed a number of errors in its pretrial rulings including: 1) its denial of Petitioner’s
    motion in limine to preclude the introduction of body camera footage recorded by one of
    the police officers who entered Petitioner’s residence after the shooting; 2) its granting of
    the State’s motion to bifurcate the trial; and 3) its denial of Petitioner’s “Notice of Intent
    to Use and Motion to Admit Rule 404(b) Evidence,” in which Petitioner sought to introduce
    evidence of Mr. Fagons’s physical, verbal, emotional, and sexual abuse against her, her
    family, and Mr. Fagons’s past romantic partners. Further, Petitioner argued that the circuit
    court erred in a ruling it made during the trial when it found that the State had not opened
    the door in its questioning of a witness such that Petitioner should have been allowed to
    introduce evidence of Mr. Fagons’s past abuse of romantic partners. Additionally,
    Petitioner argued that the State violated her right to due process and right to confront the
    witnesses against her by failing to provide her with transcripts from prior hearings in a
    timely manner. Finally, Petitioner asserted that her right to due process was violated when
    the circuit court entered orders after Petitioner filed her notice of appeal with this Court.
    Because we find that the circuit court’s failure to instruct the jury on the defense of accident
    constitutes reversible error, we decline to address the additional assignments of error raised
    by Petitioner.
    6
    back to him. Id. at 814, 
    310 S.E.2d at 881
    . The defendant testified that “[a]s the gun came
    into [his] hand, it discharged, firing the fatal bullet into [the victim’s] face just above the
    right eyebrow.” 
    Id.
     Based on this testimony, the defendant requested a jury instruction on
    accident. The prosecutor objected to the accident instruction on “the ground that it was not
    supported by the evidence. The trial court, on the other hand, commented: ‘It’s misleading
    because it would rule out involuntary manslaughter.’” 
    Id.
     Thus, the court did not instruct
    the jury on accident and the defendant was found guilty of second-degree murder.
    This Court reversed the defendant’s conviction in Evans, finding that “the
    trial court’s refusal to give a proper instruction on accidental discharge of the weapon
    constitutes reversible error.” Id. at 815, 
    310 S.E.2d at 882
    . In so ruling, the Court noted
    that “[a]ccidental death is a recognized defense to a murder charge in West Virginia. State
    v. White, 
    171 W.Va. 658
    , 
    301 S.E.2d 615
     (1983). The trial testimony of the appellant
    provided sufficient evidentiary support for the instruction on accident. Indeed, the
    instruction is a crystallization of the appellant’s defense theory.” 
    Id.
     (emphasis added).
    As noted by this Court in Evans, and a number of other cases, 7 accidental
    death is a recognized defense to murder. In syllabus point ten of State v. Legg, 
    59 W. Va. 315
    , 
    53 S.E. 545
     (1906), the Court held:
    Where one, upon an indictment for murder, relies upon
    accidental killing as a defense, and there is evidence tending in
    an appreciable degree, to establish such defense, it is error to
    refuse to instruct the jury that if they believe from the evidence
    that the killing was the result of an accident, they should find
    the defendant not guilty.
    Like the defendant in Evans, Petitioner’s trial testimony provided sufficient
    evidentiary support for her requested accident instruction. Further, it is clear that the circuit
    court erred when it concluded that the accident instruction was unnecessary and that there
    is not “any real caselaw on what should happen in an accident except for coming in and
    saying it was an accident and seeing how the jury takes that.” As noted above, this Court
    has held that accidental death is a defense to murder and that a defendant asserting this
    defense is entitled to a jury instruction on accident if the instruction is supported by the
    evidence. Therefore, we find that the circuit court abused its discretion by refusing to
    instruct the jury on accident in the instant case.
    7
    It appears this defense was first recognized in West Virginia in State v. Cross, 
    42 W. Va. 253
    , 
    24 S.E. 996
     (1896). See also State v. Bowles, 
    117 W. Va. 217
    , 
    185 S.E. 205
    (1936); State v. Reppert, 
    132 W. Va. 675
    , 
    52 S.E.2d 820
     (1949); State v. Shaffer, 
    138 W. Va. 197
    , 
    75 S.E.2d 217
     (1953).
    7
    While we find the circuit court abused its discretion by refusing to give the
    accident instruction, that is not the end of our inquiry. This Court has held that:
    A trial court’s refusal to give a requested instruction is
    reversible only if: (1) the instruction is a correct statement of
    the 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, State v. Derr, 
    192 W. Va. 165
    , 
    451 S.E.2d 731
    .
    We find Petitioner easily satisfies this three-part test. First, there is no
    dispute that the accident instruction Petitioner offered was a correct statement of the law.
    Second, the jury instructions did not address our law on accidental death. Thus, it is clear
    that the requested accident instruction was not “substantially covered in the charge” given
    to the jury. Finally, the issue covered by the instruction—whether the shooting was an
    accident—was important to the outcome of the trial and was central to Petitioner’s defense.
    We agree with Petitioner that “without the instruction, the jury [was] unaware that accident
    is a recognized defense and the trial court’s failure to give the instruction minimized the
    weight of [Petitioner’s] testimony.” While “[t]he jury is the trier of the facts . . . there is
    no presumption that they are familiar with the law.” State v. Lindsey, 
    160 W. Va. 284
    , 291,
    
    233 S.E.2d 734
    , 739 (1977) (cleaned up). Similarly, this Court has observed that “[w]ithout
    [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to
    draw the appropriate legal conclusions based on the facts.” State v. Guthrie, 
    194 W. Va. 657
    , 672, 
    461 S.E.2d 163
    , 178 (1995) (cleaned up). The circuit court’s failure to give the
    requested accident instruction left the jury with no guidance on what the law required if it
    concluded that the shooting was accidental. Thus, Petitioner satisfies the third prong of the
    Derr test.
    Based on all of the foregoing, we find that the circuit court’s refusal to
    instruct the jury on the defense of accident constitutes reversible error. Petitioner’s
    conviction and sentencing order are reversed, and this case is remanded for a new trial.
    Reversed and remanded.
    8
    ISSUED: October 17, 2022
    CONCURRED IN BY:
    Justice Elizabeth D. Walker
    Justice Tim Armstead
    Justice William R. Wooton
    Justice C. Haley Bunn
    CONCURRING and WRITING SEPARATELY:
    Chief Justice John A. Hutchison
    Hutchison, C.J., concurring:
    I concur with the majority that, given petitioner’s trial testimony that she
    accidentally shot her husband, Marcus Fagons, during a botched suicide attempt, the trial
    court committed reversible error by refusing to instruct the jury on the defense of accident.
    I write separately, however, to highlight what I perceive to be a critical evidentiary error,
    not addressed by the majority, concerning petitioner’s alternate defense theory of Battered
    Woman’s Syndrome. 1 She alleges that Mr. Fagons sexually, physically, and emotionally
    abused her on a regular basis over the course of several years. This Court has held that
    “‘evidence that the decedent had abused or threatened the life of the defendant is . . .
    relevant and may negate or tend to negate a necessary element of the offense(s) charged,
    such as malice or intent.’” Syl. Pt. 1, in part, State v. Stewart, 
    228 W. Va. 406
    , 
    719 S.E.2d 876
     (2011) (quoting Syl. Pt. 4, in part, State v. Harden, 
    223 W. Va. 796
    , 
    679 S.E.2d 628
    (2009)) (emphasis added). Further,
    [i]n cases involving Battered Woman’s Syndrome,
    evidence that a victim had abused the defendant may be
    considered by the jury when determining the factual existence
    of one or more of the essential elements of the crime charged,
    such as premeditation, malice or intent. It is generally the
    function of the jury to weigh the evidence of abuse and to
    determine whether such evidence is too remote or lacking in
    credibility to have affected the defendant’s reasoning, beliefs,
    perceptions, or behavior at the time of the alleged offense.
    1
    We have held that, at trial, “a criminal defendant may present alternative defenses
    even when they are inconsistent[.]” Syl. Pt. 2, in part, State v. McCoy, 
    219 W. Va. 130
    , 
    632 S.E.2d 70
     (2006).
    9
    Syl. Pt. 3, Stewart, 
    228 W. Va. at 409
    , 
    719 S.E.2d at 879
    .
    In the face of the prosecution’s theory that petitioner fabricated and/or
    exaggerated the extent to which Mr. Fagons abused her, and that it was petitioner who was
    the aggressor in the couple’s relationship, petitioner sought to present probative evidence
    in her defense under West Virginia Rule of Evidence 404(b). 2 More specifically, T.C., Mr.
    Fagons’s former girlfriend and the mother of his child, testified at a pre-trial hearing 3 that,
    during her one-year relationship with Mr. Fagons, he brutally beat, raped, and emotionally
    abused her on a regular basis. Similar to petitioner’s testimony about her relationship with
    Mr. Fagons and the abuse he routinely inflicted, T.C. testified that she was younger than
    Mr. Fagons and considered to be “quiet”; that Mr. Fagons isolated her from everyone but
    her family; that Mr. Fagons lived off of T.C. and her family; that he physically and sexually
    abused T.C. in private; and that he regularly raped her vaginally and anally.
    Unfortunately, the prosecutor convinced the trial court to cripple petitioner’s
    battered woman defense and rule that T.C.’s testimony was inadmissible at trial. The
    court’s ruling found that Rule 404 “prohibits the use of character evidence to show that on
    a particular occasion a person [i.e., Mr. Fagons] acted in accordance with the character
    trait[;]” that the “legitimate reasons offered [for admission under Rule 404(b)] by
    [petitioner] are not convincing [but were offered] merely to show that Marcus Fagons acted
    in accordance with a character trait (that he was a domestic batterer), i.e. he did it before
    so he did it again[;]” that the “evidence of domestic abuse against a third party” is not
    relevant, 4 and that, even if such evidence were relevant, the probative value of T.C.’s
    2
    West Virginia Rule of Evidence 404(b) provides, in relevant part:
    (1) Prohibited Uses. Evidence of a crime, wrong, or other act
    is not admissible to prove a person’s character in order to show
    that on a particular occasion the person acted in accordance
    with the character.
    (2) Permitted Uses; Notice Required. This evidence may be
    admissible for another purpose, such as proving motive,
    opportunity, intent, preparation, plan, knowledge, identity,
    absence of mistake, or lack of accident.
    3
    This hearing was held pursuant to Syllabus Point 2 of State v. McGinnis, 
    193 W. Va. 147
    , 
    455 S.E.2d 516
     (1994).
    4
    See W.Va. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make
    a fact more or less probable than it would be without the evidence; and (b) the fact is of
    consequence in determining the action.”)
    10
    testimony was “substantially outweighed by the danger of confusing the issues and
    misleading the jury.” 5
    I believe that this analysis of T.C.’s testimony was in error. T.C.’s testimony
    is relevant, probative, critical to petitioner’s defense, and should be admitted at the trial on
    remand under the “Reverse 404(b)” theory. Let me explain.
    It is well understood that Rule 404(b) protects “the criminal defendant from
    risking conviction on the basis of the defendant’s character.” United States v. Ballou, 
    59 F.Supp.3d 1038
    , 1051 (D. N.M. 2014). The rule addresses concerns that the jury may
    convict a defendant it believes “deserves to be punished not because he is guilty of the
    crime charged but because of his prior or subsequent misdeeds” or that “the jury will infer
    that because the accused committed other crimes he probably committed the crime
    charged.” United States v. Phillips, 
    599 F.2d 134
    , 136 (6th Cir. 1979). Accord United States
    v. Aboumoussallem, 
    726 F.2d 906
    , 911 (2d Cir. 1984) (Evidence of a defendant’s prior
    wrongdoings “is objectionable not because it has no appreciable probative value but
    because it has too much. Presumably, the ‘too much’ argument means that a guilty person,
    and, of far more serious concern, an innocent person, may be convicted primarily because
    of the jury’s willingness to assume his present guilt from his prior misdeed.” (footnotes
    and citations omitted)). Given these concerns, Rule 404(b) clearly applies to preclude the
    introduction of a defendant’s prior bad acts by the prosecution.
    But this case is distinguishable from the typical Rule 404(b) case because it
    is the defendant who sought to present similar acts evidence of a third party (the victim) in
    order to prove a critical fact of her defense. Such evidence, recognized by many
    jurisdictions as “reverse 404(b)” evidence, 6 is admissible at trial. See e.g., United States v.
    Reed, 
    259 F.3d 631
    , 634 (7th Cir. 2001); United States v. Rubio, 
    87 F.3d 1309
     (4th Cir.
    1996) (unpublished table opinion). This is because the “risks of prejudice are normally
    5
    See W. Va. R. Evid. 403 (“The court may exclude relevant evidence if its probative
    value is substantially outweighed by a danger of one or more of the following: unfair
    prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
    needlessly presenting cumulative evidence.”)
    6
    See United States v. Ballou, 
    59 F.Supp.3d 1038
     (D. N.M. 2013) (discussing cases).
    Further, “[t]he West Virginia Rules of Evidence are patterned upon the Federal Rules of
    Evidence, and we have repeatedly recognized that when codified procedural rules
    or rules of evidence of West Virginia are patterned after the corresponding federal rules,
    federal decisions interpreting those rules are persuasive guides in the interpretation of our
    rules.” State v. Sutphin, 
    195 W.Va. 551
    , 563, 
    466 S.E.2d 402
    , 414 (1995) (citations
    omitted). See also Syl. Pt. 3, Brooks v. Isinghood, 
    213 W. Va. 675
    , 
    584 S.E.2d 531
     (2003)
    (“A federal case interpreting a federal counterpart to a West Virginia rule of procedure may
    be persuasive, but it is not binding or controlling.”).
    11
    absent when the defendant offers similar acts evidence of a third party to prove some fact
    pertinent to the defense. In such cases the only issue arising under Rule 404(b) is whether
    the evidence is relevant to the existence or non-existence of some fact pertinent to the
    defense.” Aboumoussallem, 
    726 F.2d at 911-12
    . The standard of admissibility where the
    similar acts evidence is offered by the criminal defendant “as a shield need not be as
    restrictive as when a prosecutor uses such evidence as a sword.” 
    Id. at 911
    . Accordingly,
    “a lower standard of similarity [between the crime at issue and ‘other crimes’ evidence]
    should govern ‘reverse 404(b)’ evidence because prejudice to the defendant is not a factor.”
    United States v. Stevens, 
    935 F.2d 1380
    , 1403 (3d Cir. 1991).
    “Reverse 404(b)” evidence is thus “admissible for defensive purposes if it
    tends, alone or with other evidence, to negate the defendant’s guilt of the crime charged
    against him.” Reed, 
    259 F.3d at 634
     (internal citation omitted). As one court observed,
    “reverse 404(b)” evidence is offered “for the purpose of generating reasonable doubt”
    whereas 404(b) evidence that is offered by the prosecution against the defendant is “to
    attempt to prove guilt beyond a reasonable doubt.” United States v. Islas-Bravo, No. CR
    07-3039-MWB, 
    2008 WL 2783271
    , *6 (N.D. Iowa 2008).
    Thus, “the admissibility of ‘reverse 404(b)’ evidence depends on a
    straightforward balancing of the evidence’s probative value against considerations such as
    undue waste of time and confusion of the issues.” Stevens, 
    935 F.2d at 1404-05
    . In other
    words, the “resolution of this issue is informed by [the] general belief that a criminal
    defendant should be able to advance any evidence that, first, rationally tends to disprove
    his guilt, and second, passes the Rule 403 balancing test.” 
    Id. at 1406
    . See also United
    States v. McClure, 
    546 F.2d 670
    , 672-73 (5th Cir. 1977) (holding that under Rule 404(b),
    “evidence of a [third party’s] systemic campaign of threats and intimidation against other
    persons is admissible to show lack of criminal intent by a defendant who claims to have
    been illegally coerced” into selling drugs and explaining that a more relaxed standard for
    admissibility of the evidence applies because the defendant had a “right to present a
    vigorous defense . . . .The fact that [the evidence] referred exclusively to threats made by
    [the third-party] after the sales by appellant affects its weight but not its admissibility.”).
    In the present case, when confronted with the prosecution’s theory that
    petitioner fabricated or exaggerated the extent to which Mr. Fagons abused her for several
    years and that she was the aggressor in the relationship, petitioner sought to introduce
    testimony from T.C. (Mr. Fagons’s former girlfriend) that, similar to petitioner’s own
    experience, Mr. Fagons emotionally abused her and brutally beat and raped her on a
    regular basis during the course of their relationship. Petitioner sought to introduce this
    similar-acts evidence in order to mitigate her guilt – that is, to lend credence to her defense
    that she was a battered spouse, thereby negating premeditation, malice, or intent to kill her
    husband. See Syl. Pt. 1, in part, Stewart, 
    228 W. Va. at 409
    , 
    719 S.E.2d at 879
    . This
    evidence was clearly relevant to the existence of a fact pertinent to petitioner’s defense.
    See Aboumoussallem, 
    726 F.2d at 912
    . Under the balancing requirements of Rule 403, the
    12
    probative effect of this evidence, in my view, is far greater than any potential confusion of
    the issues or possibility that the jury could be misled. A jury is fully capable of discerning
    the purpose of T.C.’s testimony. Hence, on remand, petitioner should be allowed to
    introduce evidence in support of her defense, and the jury be permitted to decide the
    veracity and probative effect of that evidence.
    With that said, I respectfully concur.
    13