State of West Virginia v. Jeri L. Galloway ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
September 25, 2017
vs) No. 16-0933 (Tyler County 16-F-6) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Jeri L. Galloway,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Jeri L. Galloway, by counsel John E. Gainer, appeals the Circuit Court of Tyler
County’s September 15, 2016, order sentencing him to a term of incarceration of one to ten years
and ordering he pay restitution in the amount of $10,000 following his conviction of one count of
obtaining money by false pretenses. The State, by counsel Shannon Frederick Kiser, filed a
response. On appeal, petitioner argues that the circuit court erred in admitting evidence under
Rule 404(b) of the West Virginia Rules of Evidence.
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, this Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In September of 2014, petitioner and representatives from Middlebourne United
Methodist Church (“the church”) entered into an agreement for petitioner to perform repair work
on their property. At that time, the church issued petitioner a check for $10,000 as a down
payment for the work to be completed. Petitioner informed the church that he would order
building materials to be shipped to the repair site as soon as possible and that he would begin
working prior to January of 2015. However, no materials were ever ordered and petitioner never
began the work. After the check was issued, the church attempted to contact petitioner multiple
times but could never reach him. Ultimately, petitioner was charged with obtaining money by
false pretenses.
In July of 2016, the State filed a timely notice of its intent to introduce evidence under
Rule 404(b) of the West Virginia Rules of Evidence at petitioner’s trial.1 On July 7, 2016, the
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Rule 404(b)(1) states that “[e]vidence 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
(continued . . . )
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circuit court held a hearing on the admissibility of this evidence and heard testimony from Mark
Powell regarding an instance in which he paid petitioner $1,940 as a down payment for the
construction of a retaining wall that petitioner never began work on. According to Mr. Powell,
petitioner agreed to order building materials and have them shipped to the job site. However,
petitioner never ordered the materials and refused to return Mr. Powell’s calls or certified mail.
According to the State, this evidence established petitioner’s motive, intent, and general scheme
or plan in regard to the offense for which he was being tried. Ultimately, the circuit court granted
the State’s motion.
At trial that same month, the jury heard testimony from Mr. Powell regarding his prior
interaction with petitioner. In regard to this testimony, the circuit court gave the jury a limiting
instruction that directed them to consider the evidence only for purposes of motive, intent, and
common scheme or plan. At the close of trial, the jury found petitioner guilty of one count of
obtaining money by false pretenses. The circuit court then sentenced petitioner to a term of
incarceration of one to ten years and ordered that he pay the church restitution in the amount of
$10,000. It is from the sentencing order that petitioner appeals.
We have previously established the following standard of review:
“A trial court’s evidentiary rulings, as well as its application of the Rules
of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt.
4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).
Syl. Pt. 1, State v. Timothy C., 237 W.Va. 435, 787 S.E.2d 888 (2016). Further,
[t]he standard of review for a trial court’s admission of evidence pursuant to Rule
404(b) involves a three-step analysis. First, we review for clear error the trial
court’s factual determination that there is sufficient evidence to show the other
acts occurred. Second, we review de novo whether the trial court correctly found
the evidence was admissible for a legitimate purpose. Third, we review for an
abuse of discretion the trial court’s conclusion that the “other acts” evidence is
more probative than prejudicial under Rule 403.
Id. at 443, 787 S.E.2d at 896 (quoting State v. Jonathan B., 230 W.Va. 229, 236, 737 S.E.2d 257,
264 (2012)).
To begin, the Court finds no error in the circuit court’s finding that there was sufficient
evidence to show the other act in question occurred. In fact, in his brief on appeal to this Court,
petitioner does not dispute that the other act occurred. Petitioner points out that he was never
accordance with the character.” However, Rule 404(b)(2) goes on to provide that “[t]his
evidence may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
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convicted of any crime regarding his interaction with Mr. Powell, but highlights this fact only to
illustrate that it was never established whether the act itself “was a wrongful act or a simple
breach of contract.” Because there is no dispute as to whether the petitioner’s taking of Mr.
Powell’s money without fulfilling his duty to build a retaining wall actually occurred, we find no
error in this regard.
Next, we find that the circuit court correctly found that this evidence was admissible for a
legitimate purpose and did not abuse its discretion in determining that it was more probative than
prejudicial. We have previously instructed circuit courts, after having found by a preponderance
of the evidence that the other act occurred and that the defendant committed the act, that
the trial court must then determine the relevancy of the evidence under Rules 401
and 402 of the West Virginia Rules of Evidence and conduct the balancing
required under Rule 403 of the West Virginia Rules of Evidence. If the trial court
is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the
jury on the limited purpose for which such evidence has been admitted.
Syl. Pt. 3, in part, State v. Zuccaro, -- W.Va. --, 799 S.E.2d 559 (2017) (quoting Syl. Pt. 2, State
v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994)). Here, the State established the evidence’s
relevance by showing that it established petitioner’s motive, intent, and common scheme or plan
across the two acts. Indeed, the evidence speaks directly to petitioner’s common plan of entering
into agreements to perform work, accepting money to complete the agreed upon projects, and
then failing to begin the work and otherwise make himself available to the individual or entity
that retained him. While petitioner argues that the evidence was irrelevant because it was “used
to give the jury the impression that he was a thief and that he acted in conformity with that
character[,]” we find this argument unpersuasive.
On the contrary, we find that the evidence in question was more probative than unfairly
prejudicial and, accordingly, was properly admitted under Rule 403. Here, petitioner could have
easily argued that he mistakenly failed to begin the work on the church’s property or that he
accidentally erred in ordering the material to begin the work. The evidence of his prior bad act,
in which he similarly accepted money and failed to take any steps toward completing the
required work, speaks directly to an absence of mistake or a lack of accident, in addition to
establishing petitioner’s motive, intent, and common scheme. Moreover, the circuit court
provided a limiting instruction to the jury regarding the testimony, which petitioner does not
challenge. As such, we find no error in this regard.
For the foregoing reasons, the circuit court’s September 15, 2016, sentencing order is
hereby affirmed.
Affirmed.
ISSUED: September 25, 2017
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CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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