State of West Virginia v. Michael S. Sites ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
JANUARY 2019 TERM
_____________ FILED
February 7, 2019
No. 16-0437 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent
V.
MICHAEL S. SITES,
Petitioner
____________________________________________________________________
Appeal from the Circuit Court of Grant County
Honorable Lynn Nelson, Judge
Criminal Action No. 15-F-19
AFFIRMED
____________________________________________________________________
Submitted: January 29, 2019
Filed: February 7, 2019
Nicholas T. James, Esq. Patrick Morrisey, Esq.
Daniel R. James, Esq. Attorney General
The James Law Firm Thomas T. Lampman, Esq.
Keyser, West Virginia Assistant Attorney General
Attorneys for Petitioner Gordon L. Mowen, II, Esq.
Assistant Attorney General
Attorneys for Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘To preserve an issue for appellate review, a party must articulate it
with such sufficient distinctiveness to alert a circuit court to the nature of the claimed
defect.’ Syllabus point 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470
S.E.2d 162 (1996).” Syllabus point 10, State v. Shrewsbury, 213 W. Va. 327, 582
S.E.2d 774 (2003).
2. “Where an offer of evidence is made under Rule 404(b) of the West
Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West
Virginia Rules of Evidence, is to determine its admissibility. Before admitting the
evidence, the trial court should conduct an in camera hearing as stated in State v.
Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and
arguments of counsel, the trial court must be satisfied by a preponderance of the
evidence that the acts or conduct occurred and that the defendant committed the
acts. If the trial court does not find by a preponderance of the evidence that the acts
or conduct was committed or that the defendant was the actor, the evidence should
be excluded under Rule 404(b). If a sufficient showing has been made, the trial
court must then determine the relevancy of the evidence under Rules 401 and 402
i
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. A limiting instruction should
be given at the time the evidence is offered, and we recommend that it be repeated
in the trial court’s general charge to the jury at the conclusion of the evidence.”
Syllabus point 2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516, (1994).
3. “The decision to grant a motion for severance pursuant to
W. Va. R. Crim. P. 14(a) is a matter within the sound discretion of the trial court.”
Syllabus point 3, in part, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988).
4. “In clear terms, the plain error rule should be exercised only to avoid
a miscarriage of justice. The discretionary authority of this Court invoked by lesser
errors should be exercised sparingly and should be reserved for the correction of
those few errors that seriously affect the fairness, integrity, or public reputation of
the judicial proceedings.” Syllabus point 7, in part, State v. LaRock, 196 W. Va. 294,
470 S.E.2d 613 (1996).
ii
5. Under Rule 43(a) of the West Virginia Rules of Criminal Procedure,
a defendant has a right to be present with counsel and provided with an opportunity
to be heard, prior to a trial court responding to a jury question during its
deliberations. This right may be waived and a violation is subject to harmless error
analysis.
6. “The function of an appellate court when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the evidence admitted
at trial to determine whether such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the
relevant inquiry is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime proved beyond a reasonable doubt.” Syllabus point 1, State v. Guthrie,
194 W.Va. 657, 461 S.E.2d 163 (1995).
iii
Hutchison, Justice:
This appeal was brought by Michael S. Sites (hereinafter “Petitioner”) from
the April 11, 2016, order of the Circuit Court of Grant County sentencing him for his
convictions of first-degree murder, holding a hostage to defile, and two counts of
possession of a controlled substance with intent to deliver.1 In this appeal Petitioner has
assigned error as follows: admission of toxicology evidence, admission of Rule 404(b)
evidence, joinder of Count II with other offenses, failure to sever offenses occurring on
different dates, improperly responding to jury questions, admission of previously excluded
evidence, and insufficient evidence to support two convictions. Upon careful review of the
briefs, the appendix record, the arguments of the parties, and the applicable legal authority,
we affirm.
I.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts of this case began on September 12, 2013. On that day,
Petitioner drove from his home in Grant County, West Virginia, to a pharmacy in
Winchester, Virginia, to pick up his prescription drugs Alprazolam (also called Xanax) and
1
Petitioner was sentenced to life with mercy on the murder conviction, three
to ten years imprisonment on the hostage conviction, and two to six years
imprisonment on each of the drug convictions. The sentences were ordered to be
served consecutively. A third drug charge was dismissed.
1
Oxycodone (also called Percocet).2 Petitioner was accompanied by his adult daughter,
Jordan Kivett, and an adult family relative named Lexus Cantwell.3 After obtaining the
pills, and while still in the pharmacy parking lot, Petitioner, Ms. Kivett and Ms. Cantwell
crushed some of the pills and snorted them up their noses. Later that evening a party was
held at Petitioner’s home in Grant County. Petitioner gave his prescription pills freely to
all the females at the party, including Ms. Cantwell. The men were required to pay for the
pills.
At some point during the evening, Ms. Cantwell became incapacitated from
taking the prescription pills and drinking alcohol. After a few of the guests did not see Ms.
Cantwell in the house, they asked Petitioner where she was. Petitioner stated that Ms.
Cantwell “passed out in the closet, so [he] put her in the bed.” One of the guests, Joey
Snyder, demanded to see Ms. Cantwell.4 Petitioner unlocked his bedroom door briefly and
Mr. Snyder was able to see Ms. Cantwell lying on a bed with her pants off.
2
It appears that Petitioner had a previous back injury and “had been getting
prescription drugs for years” to treat his back pain.
3
Ms. Kivett and Ms. Cantwell were cousins. It appears that Ms. Kivett and
Ms. Cantwell were temporarily living at Petitioner’s home. Ms. Cantwell had
recently broken up with her boyfriend and went to live with Ms. Kivett to help
recover from the breakup.
4
Mr. Snyder and Ms. Cantwell were cousins.
2
It appears that during the course of the next four days Ms. Cantwell stayed at
Petitioner’s home. Ms. Kivett, who had been staying at Petitioner’s home, stayed at the
home of her boyfriend during this four-day period. However, Ms. Kivett maintained daily
contact with Ms. Cantwell during this time. Ms. Kivett had the impression that Ms.
Cantwell “acted like she almost wasn’t allowed to [leave Petitioner’s home].” On
September 16, 2013, Ms. Kivett went to Petitioner’s home to do some laundry. She
repeatedly knocked on Petitioner’s bedroom door, which was locked, but got no answer.
After being in the home for several hours, Ms. Kivett began knocking on Petitioner’s
bedroom door again. Petitioner finally responded and said that he would be out. After
Petitioner came out of his bedroom, Ms. Kivett saw Ms. Cantwell lying on his bed with
vomit coming out of her mouth and blood coming out of her nose and ears; she was dead.
Ms. Kivett told Petitioner to call 911, but he decided to drive Ms. Cantwell’s body to a
hospital.
Petitioner dropped off Ms. Cantwell’s body at Grant Memorial Hospital. He
informed a nurse that Ms. Cantwell was a friend of his daughter and that he believed her
name was Lexi. Petitioner left the hospital without telling the nurse his name. After
Petitioner left the hospital, he saw Ms. Kivett riding with her boyfriend and flagged them
down. During a brief discussion with Ms. Kivett on the roadside, Petitioner attempted to
get her to agree that he was at work when she found Ms. Cantwell’s body. Ms. Kivett
informed Petitioner that she was going to tell the truth. A few days later Petitioner tried to
3
suggest to Ms. Kivett that Ms. Cantwell committed suicide. Several days after this incident
Petitioner told Ms. Kivett that “he was afraid that it was his fault, that he may have gave
[Ms. Cantwell] too many pills.” A pathologist determined that Ms. Cantwell “died of
intoxication by the combined effects of the oxycodone and the alprazolam.”
Subsequent to a police investigation, a grand jury returned a five count
indictment against Petitioner on March 3, 2015. The indictment charged him with one
count of first-degree murder by supplying Ms. Cantwell with lethal amounts of Oxycodone
and Alprazolam; one count of holding Ms. Cantwell hostage with the intent to defile; two
counts of possession with the intent to deliver the controlled substance Alprazolam; and
one count of possession with the intent to deliver the controlled substance Oxycodone. The
prosecutor presented the case under a felony-murder theory, with the Oxycodone charge
as the underlying felony.5
The case was tried before a jury starting on February 17, 2016, and concluded
on February 19, 2016.6 The prosecutor presented testimony from nineteen witnesses.
5
See Syl. pt. 7, State v. Sims, 162 W.Va. 212, 248 S.E.2d 834 (1978) (“The
crime of felony-murder in this State does not require proof of the elements of malice,
premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs
accidentally during the commission of, or the attempt to commit, one of the
enumerated felonies.”).
6
The case was originally presided over by the Honorable Judge Phil Jordan.
Judge Jordan retired on December 31, 2015, and was succeeded by the Honorable
Judge Lynn Nelson.
4
Petitioner did not testify and did not call any witnesses. The jury submitted seven questions
to the trial court during its deliberations. The trial court responded to each of the questions.
The jury ultimately returned a verdict convicting Petitioner of first-degree murder, holding
hostage to defile, and two counts of possession with the intent to deliver the controlled
substance Alprazolam.7 Following the denial of post-trial motions the Petitioner filed this
appeal. While the appeal was pending the parties filed a joint motion asking this Court to
stay the appeal,8 and permit them to supplement the record on the issue of the trial judge
responding to seven jury questions.9 By order entered January 25, 2017, this Court granted
the motion and remanded the case “for the limited purpose of establishing the record on
issues related to the assignment of error of whether petitioner’s rights were violated when
the circuit court answered a series of questions for the jury outside the presence of
petitioner or his counsel.”10
7
The underlying felony-murder charge, delivery of Oxycodone, was
dismissed. See Syl. pt. 8, State v. Williams, 172 W. Va. 295, 305 S.E.2d 251 (1983)
(“Double jeopardy prohibits an accused charged with felony-murder, as defined by
W. Va. Code § 61–2–1 (1977 Replacement Vol.), from being separately tried or
punished for both murder and the underlying enumerated felony.”).
8
At the time of the motion, the State had not filed a response brief to the
appeal.
9
The jury questions and responses are presented in the Discussion section of
the opinion.
10
This Court agreed to remand the issue for further development because the
trial judge did not go on the record when he responded to five of the seven questions.
5
On remand, a hearing was conducted before a new judge, the Honorable H.
Charles Carl, III. A total of eight witnesses testified on remand regarding the issue,
including Petitioner, his trial counsel11 and the presiding trial judge.12 Petitioner testified
that he was present when the trial court responded to the first two jury questions, but that
his trial counsel was not present. Petitioner also testified that he was not present when the
trial judge responded to the last five jury questions. Petitioner’s trial counsel testified that
he was only present for one of the questions (possibly the sixth question) submitted by the
jury. Trial counsel also disputed a claim that the trial judge contacted him by cell phone
regarding the first two jury questions. The trial judge testified that Petitioner was not
present when he responded to the last five jury questions, but that Petitioner’s trial counsel
was present for all of the questions except the first jury question.13 The trial judge also
stated that he called trial counsel on his cell phone and consulted with him regarding the
first jury question.14 The official court reporter testified that the court reporting equipment
was running in the courtroom during the jury deliberations. The court reporter indicated
that the recording equipment only picked up trial counsel’s voice once, and that was around
11
Two attorneys represented the Petitioner during the trial: John G. Ours and
J. Stuart Bowers, II. Mr. Bowers had to leave the trial, prior to the jury questions,
because of a family medical emergency. For the purpose of the jury question issues
in this case, all references to Petitioner’s trial counsel means Mr. Ours only.
12
The other witnesses were court personnel who attended the trial.
13
The trial judge was somewhat equivocal and stated that trial counsel may
have been “present or conferred with on the second one.”
14
Trial counsel was allegedly at a McDonald’s restaurant.
6
the time when the sixth jury question was sent into the courtroom. The court reporter also
testified that she distinctly remembered that trial counsel was not present for the first
question, because “[w]e contacted him at McDonald’s and waited.” The trial judge’s law
clerk testified that the trial judge called Petitioner’s trial counsel to inform him of the first
jury question. The law clerk also testified that trial counsel was present for the last five
jury questions. The bailiff for the trial judge testified that trial counsel was present for all
of the jury questions. Two other witnesses at the hearing testified that they had no
recollection of the events surrounding the jury questions.15
15
During the remand hearing, Petitioner learned for the first time that the
trial judge went to the jury room with the bailiff and asked the jury if they wanted
to recess for the evening. We will not address this issue as an assignment of error
because it was not adequately briefed as such. See Syl. pt. 6, Addair v. Bryant, 168
W.Va. 306, 284 S.E.2d 374 (1981) (“Assignments of error that are not argued in the
briefs on appeal may be deemed by this Court to be waived.”). However, we will
point out that the manner in which the trial judge handled the matter was not
consistent with this Court’s guidelines. See Syl. pt. 3, State v. Keaton, 215 W. Va.
376, 599 S.E.2d 799 (2004) (“The best practices to be followed when a trial judge
addresses or converses with a juror or the jury in a criminal proceeding are as
follows, unless special circumstances—that should be fully spread upon the
record—dictate otherwise: (1) the judge should address or converse with jurors on
the record and in the presence of the defendant and his or her counsel unless the
defendant personally and affirmatively waives the right to be present; (2) when a
trial judge addresses or converses with one or more jurors and the defendant and his
or her counsel are not present, the defendant and his or her counsel should be
furnished with a prompt oral summary by the trial court and a subsequent transcript
of the address or conversation; (3) after the substance or transcript of the address or
conversation are made known to the defendant and his or her counsel, any alleged
error in or problem with the address or conversation should be promptly presented
to the trial court in an appropriate motion—although failure to do so does not per se
preclude raising any alleged error or problem in the address or conversation on
appeal.”).
7
Subsequent to the remand hearing, the Petitioner filed a supplemental brief
addressing the jury question issues. The State then filed its brief, which addressed the jury
question issues.
II.
STANDARD OF REVIEW
This case comes to this Court after the trial court denied Petitioner’s post-
trial motions for judgment of acquittal and new trial. We have held that “[a]lthough the
ruling of a trial court in granting or denying a motion for a new trial is entitled to great
respect and weight, the trial court’s ruling will be reversed on appeal when it is clear that
the trial court has acted under some misapprehension of the law or the evidence.” Syl. pt.
4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). It has also
been noted that “a trial judge should rarely grant a new trial. . . . Indeed, a new trial should
not be granted unless it is reasonably clear that prejudicial error has crept into the record
or that substantial justice has not been done.” McInarnay v. Hall, 241 W. Va. 93, 818
S.E.2d 919, 924 (2018) (internal quotation marks and citation omitted). This Court applies
the following general standard when reviewing a circuit court decision denying a motion
for a new trial:
In reviewing challenges to findings and rulings made by a circuit
court, we apply a two-pronged deferential standard of review. We
review the rulings of the circuit court concerning a new trial and its
conclusion as to the existence of reversible error under an abuse of
discretion standard, and we review the circuit court's underlying
8
factual findings under a clearly erroneous standard. Questions of law
are subject to a de novo review.
Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). Further, we have held
that:
The trial court’s disposition of a motion for judgment of acquittal is
subject to our de novo review; therefore, this Court, like the trial court,
must scrutinize the evidence in the light most compatible with the
verdict, resolve all credibility disputes in the verdict's favor, and then
reach a judgment about whether a rational jury could find guilt beyond
a reasonable doubt.
State v. LaRock, 196 W. Va. 294, 304, 470 S.E.2d 613, 623 (1996). Additional review
standards will be used for specific issues. Accordingly, we proceed to consider the parties’
arguments.
III.
DISCUSSION
A.
Admission of Toxicology Evidence
During the trial the State introduced the results of toxicology tests that were
performed on Ms. Cantwell’s blood. This evidence was introduced through Dr. James
Kraner, the Chief Toxicologist of the Medical Examiner’s Office. Dr. Kraner testified that
Ms. Cantwell’s blood had a level of the drugs Alprazolam and Oxycodone “that could
cause fatal respiratory depression.” In this appeal, the Petitioner contends that his Sixth
Amendment right to confrontation was violated because Dr. Kraner did not perform the
9
toxicology testing. The State argues that Petitioner failed to object to Dr. Kraner’s
testimony or his toxicology report on this ground during the trial, and therefore any alleged
Sixth Amendment violation was waived.
The Sixth Amendment confrontation right that the Petitioner contends was
violated is set out in Syllabus point 6 of State v. Mechling, 219 W. Va. 366, 633 S.E.2d
311 (2006) as follows:
Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004), the Confrontation Clause contained
within the Sixth Amendment to the United States Constitution and
Section 14 of Article III of the West Virginia Constitution bars the
admission of a testimonial statement by a witness who does not appear
at trial, unless the witness is unavailable to testify and the accused had
a prior opportunity to cross-examine the witness.
The decision in Mechling defined a testimonial statement as “a statement that is made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Syl. pt. 8, Mechling, in part.
Assuming that the toxicology evidence in this case constitutes a statement
under Mechling, the record supports the State’s contention that Petitioner failed to object
to the evidence on Sixth Amendment grounds.16 We have recognized that “[o]ne of the
16
In our review of the testimony of Dr. Kraner it appears that defense counsel
made a general objection to the introduction of his toxicology report, not his
10
most familiar procedural rubrics in the administration of justice is the rule that the failure
of a litigant to assert a right in the trial court likely will result in the imposition of a
procedural bar to an appeal of that issue.” State v. Miller, 194 W. Va. 3, 17, 459 S.E.2d
114, 128 (1995) (internal quotation marks omitted). That is, “‘[t]o preserve an issue for
appellate review, a party must articulate it with such sufficient distinctiveness to alert a
circuit court to the nature of the claimed defect.’ Syl. pt. 2, State ex rel. Cooper v.
Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996).” Syl. pt. 10, State v. Shrewsbury, 213
W. Va. 327, 582 S.E.2d 774 (2003). This principle is designed to prevent “a party from
making a tactical decision to refrain from objecting and, subsequently, should the case turn
testimony, but never stated any specific ground for the objection. We have
addressed the issue of a general objection as follows:
A general objection overruled is of small value to the
objector on appeal.... The rationale of this rule is that the
proponent of the evidence should be given an
opportunity to meet the objection by reframing the
question, laying the necessary foundation, or by other
means. A general objection does not offer him this
opportunity. Thus, the objector in most instances will
lose his rights on appeal by failing to take further action
after his general objection has been overruled.
State v. McFarland, 175 W. Va. 205, 220, 332 S.E.2d 217, 232 (1985), superseded
by Court rule as recognized in State v. Joseph, 214 W. Va. 525, 590 S.E.2d 718
(2003) (citation omitted). See 1 Louis J. Palmer, Jr., et al., Handbook on Evidence
for West Virginia Lawyers, § 103.03[3][b], at 71 (6th Ed. 2015) (“Rule 103(a)(1)
provides that protests to the admission of evidence are to be specific, ‘unless it was
apparent from the context.’ For this reason a general objection under the rules is
not preferred and may be insufficient, when overruled, to preserve the error for
appeal.”).
11
sour, assigning error (or even worse, planting an error and nurturing the seed as a guarantee
against a bad result).” LaRock, 196 W. Va. at 316, 470 S.E.2d at 635. Petitioner’s failure
to raise a Confrontation Clause objection at trial precludes this Court from addressing the
matter in this appeal. See State v. Shingleton, 237 W. Va. 669, 684, 790 S.E.2d 505, 520
(2016), abrogated by statute on other grounds (“The petitioner did not assert a
Confrontation Clause objection to L.C.'s testimony during trial. Consequently, he has
waived the right to raise the issue on appeal.”); State v. Reed, 223 W. Va. 312, 321–22, 674
S.E.2d 18, 27–28 (2009) (“Assuming that Crawford is applicable to the facts of this case,
we find that Mr. Reed waived the right to raise the issue in this appeal.”).17
17
Petitioner has asked this Court to review the issue under the plain error
rule. See State v. Miller, 194 W. Va. 3, 18, 459 S.E.2d 114, 129 (1995) (“The ‘plain
error’ doctrine grants appellate courts, in the interest of justice, the authority to
notice error to which no objection has been made.”). We decline to do so. See State
v. Henson, 239 W. Va. 898, 908 n.16, 806 S.E.2d 822, 832 n.16 (2017) (“We also
decline to invoke the plain error doctrine regarding this alleged error[.]”); State v.
Fleming, 237 W. Va. 44, 55, 784 S.E.2d 743, 754 (2016) (“we decline to invoke the
plain error rule on this issue.”); State v. Rogers, 231 W. Va. 205, 216, 744 S.E.2d
315, 326 (2013) (“we decline to invoke the plain error doctrine regarding alleged
misstatement of law made by the prosecutor.”). We will note in passing that federal
courts have indicated that the United States Supreme Court has not expressly ruled
that a Crawford violation occurs in the context of a supervising official, like Dr.
Kraner, testifying about test results done by a subordinate. See Bullcoming v. New
Mexico, 564 U.S. 647, 672, 131 S. Ct. 2705, 2722, 180 L. Ed. 2d 610 (2011)
(Sotomayor, J., concurring in part) (observing that the Supreme has not addressed
the situation “in which the person testifying is a supervisor, reviewer, or someone
else with a personal, albeit limited, connection to the scientific test at issue.”); Black
v. United States, 2017 WL 405933, at *3 (E.D. Mich. Jan. 31, 2017) (“courts have
recognized that it remains an open question whether someone in Dr. Nieberding’s
position may testify as to a test conducted by a subordinate employee under his
supervision.”).
12
B.
Admission of Rule 404(b) Evidence
The Petitioner next contends that the trial court committed error in admitting
certain evidence under Rule 404(b) of the West Virginia Rules of Evidence, in violation of
State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). Specifically, Petitioner argues
that the trial court improperly permitted four witnesses to present testimony showing that
he previously gave controlled substances to women and engaged in sexual conduct with
them. The State contends that this evidence was admissible to show Petitioner’s common
plan or scheme in giving women controlled substances in order to render them incapable
of resisting his sexual advances.
We have held that “[a] trial court’s evidentiary rulings, as well as its
application of the Rules of Evidence, are subject to a review under an abuse of discretion
standard.” Syl. pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). “Our
function . . . is limited to the inquiry as to whether the trial court acted in a way that was so
arbitrary and irrational that it can be said to have abused its discretion.” McGinnis, 193 W.
Va. at 159, 455 S.E.2d at 528.
Rule 404(b) provides 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 accordance with the character.” However, the rule goes on to provide that
13
“[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.” The procedure for admitting evidence under Rule 404(b) was outlined in
Syllabus point 2 of McGinnis as follows:
Where an offer of evidence is made under Rule 404(b) of the
West Virginia Rules of Evidence, the trial court, pursuant to Rule
104(a) of the West Virginia Rules of Evidence, is to determine its
admissibility. Before admitting the evidence, the trial court should
conduct an in camera hearing as stated in State v. Dolin, 176 W. Va.
688, 347 S.E.2d 208 (1986). After hearing the evidence and
arguments of counsel, the trial court must be satisfied by a
preponderance of the evidence that the acts or conduct occurred and
that the defendant committed the acts. If the trial court does not find
by a preponderance of the evidence that the acts or conduct was
committed or that the defendant was the actor, the evidence should be
excluded under Rule 404(b). If a sufficient showing has been made,
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. A limiting
instruction should be given at the time the evidence is offered, and we
recommend that it be repeated in the trial court’s general charge to the
jury at the conclusion of the evidence.
The record shows that the trial court held a McGinnis hearing at which the
State presented evidence from eight witnesses that it intended to call at trial, to testify to
prior acts of Petitioner providing controlled substances to woman for the purpose of
engaging in sexual conduct with them. The trial court ultimately ruled that only four of
the witnesses would be allowed to testify, because testimony by the remaining four
14
witnesses would be cumulative. The court also held that the testimony would be admissible
for all of the charges, except the hostage charge.18 Ultimately the court gave a limiting
instruction on the evidence when each witness’s testimony was given at trial and during its
charge to the jury.
In this appeal, the Petitioner argues several reasons as to why the trial court
erred in admitting the Rule 404(b) evidence. First, the Petitioner contends that the
testimony of the witnesses at the McGinnis hearing did not show by a preponderance of
the evidence that he engaged in sexual acts with the witnesses or that they were under the
influence of drugs “where they could not resist.” We disagree. The Petitioner’s daughter,
Ms. Kivett, testified at the McGinnis hearing that she saw Petitioner give drugs to women,
and that on different occasions she saw women naked his home. Ms. Kivett also testified
that Petitioner tried to seduce her several times while she was under the influence of drugs.
Another witness named Nicole Cain, testified that she stayed with Petitioner for about a
month and that he supplied her with drugs. Ms. Cain stated that she left Petitioner’s home
after he made sexual advances toward her when she was blacked out from drugs. A third
18
The trial court prohibited the evidence from being introduced on the
hostage charge, because the State failed to provide timely notice to the Petitioner
that the evidence would be used for that offense as well. See Rule 404(b)(2) (“Any
party seeking the admission of evidence pursuant to this subsection must: (A)
provide reasonable notice of the general nature and the specific and precise purpose
for which the evidence is being offered by the party at trial; and (B) do so before
trial—or during trial if the court, for good cause, excuses lack of pretrial notice.”).
15
witness, Devon Harlow, testified that Petitioner gave her drugs and that she slept in his
bed. The fourth witness, Corey Teeter, testified regarding Petitioner giving drugs to his
former girlfriend and performing oral sex on her. In light of the sworn testimony of the
witnesses, we find that the trial court properly found by a preponderance of the evidence
that the conduct each witness described actually occurred and that the Petitioner committed
the acts.
The Petitioner also contends that the Rule 404(b) evidence was not
admissible because it lacked relevancy. Under Rule 402 of the West Virginia Rules of
Evidence it is expressly provided that “[i]rrelevant evidence is not admissible.” It has been
recognized that “evidence is relevant so long as it has any tendency, however slight, to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” 1 Palmer, et al.,
Handbook on Evidence, § 401.03[1], at 260. See W. Va. R. Evid. Rule 401. According to
Petitioner the Rule 404(b) evidence would only be relevant if he were charged with sexual
assault in the second degree, because that offense occurs when a person engages in sexual
conduct with another person who is physically helpless. See W. Va. Code § 61-8B-4(a)(2)
(1991). We disagree with the Petitioner’s narrow interpretation of the type of evidence
that may be used to show a common plan or scheme.
16
It has been recognized that “a common plan or scheme may be established
by evidence that the defendant committed markedly similar acts of misconduct against
similar victims under similar circumstances.” State v. DeVincentis, 112 Wash. App. 152,
157, 47 P.3d 606, 608–09 (2002) (internal quotation marks and citation omitted). See
United States v. Ramey, 791 F.2d 317, 323 (4th Cir.1986) (“[O]ther identical instances of
[conduct] to that charged in the indictment, occurring reasonably current with the activity
charged in the indictment and connected with the very illegal activity which was the subject
matter of the indictment, is admissible under the rubric of intent, plan, scheme or design.”).
In the instant case the Petitioner was charged with three counts of delivery of a controlled
substance, and one count of first degree murder by supplying Ms. Cantwell with lethal
amounts of controlled substances. The testimony of the Rule 404(b) witnesses was relevant
to these offenses and the State’s theory that the Petitioner had a common plan or scheme
of supplying controlled substances to women in order to seduce them. See State v. Lough,
125 Wash. 2d 847, 863–64, 889 P.2d 487, 496 (1995) (“Because the Defendant drugged
his victims, rendering them unconscious or unable to clearly remember everything that
happened, the evidence of many prior similar episodes to prove a plan was necessary and
probative of the facts of the charged crime.”); People v. Carroll, No. 327707, 2011 WL
2423918, at *1 (Mich. Ct. App. June 16, 2011) (“Without using the words ‘scheme, plan,
or system,’ the court did in fact indicate that the testimony was pertinent to show that
defendant had a system whereby he tried to obtain sex from women after providing them
with alcohol or drugs.”).
17
The Petitioner further argues that even if the Rule 404(b) evidence was
relevant, it should have been excluded as highly prejudicial under Rule 403 of the West
Virginia Rules of Evidence. It has been recognized that under Rule 403 “a court has
discretion to exclude evidence if its probative value is substantially outweighed by a danger
of unfair prejudice.” 1 Palmer, et al., Handbook on Evidence, § 403.05[2], at 295. It has
been said that unfair prejudice is evidence that has “an undue tendency to suggest [a]
decision on an improper basis, commonly, though not necessarily, an emotional one.” Old
Chief v. United States, 519 U.S. 172, 180, 117 S. Ct. 644, 650, 136 L. Ed. 2d 574 (1997)
(internal quotation marks and citation omitted). Petitioner contends that “prejudice
occurred as a result of the thirty year age difference between the Petitioner and the young
women he allegedly engaged in sexual acts with.” Additionally, Petitioner argues that
prejudice occurred from some of the witnesses testifying that he used and sold drugs other
than his prescription medication. Assuming that the facts Petitioner argues prejudiced him,
we do not find that the admission of the Rule 404(b) evidence was unfairly prejudicial. See
State v. Corey, 233 W. Va. 297, 307, 758 S.E.2d 117, 127 (2014) (“Although the evidence
of the knives was prejudicial, such evidence was not unfairly prejudicial.”); State v.
Blevins, 231 W.Va. 135, 744 S.E.2d 245, 260 n. 10 (2013) (“In weighing the probative
value and the danger of unfair prejudice, it is imperative to note that the purpose of Rule
403 is not to exclude all evidence that results in prejudice to a defendant. It is the danger
of unfair prejudice to which a reviewing court must be attuned.”). “Rule 403 was never
intended to exclude relevant evidence simply because it is detrimental to one party’s case;
18
rather, the relevant inquiry is whether any unfair prejudice from the evidence substantially
outweighs its probative value.” 1 Palmer, et al., Handbook on Evidence, § 403.05[2], at
297. See United States v. Pitrone, 115 F.3d 1, 8 (1st Cir.1997) (“Virtually all evidence is
prejudicial--if the truth be told, that is almost always why the proponent seeks to introduce
it--but it is only unfair prejudice against which the law protects.”); Dollar v. Long Mfg.,
N.C., Inc., 561 F.2d 613, 618 (5th Cir.1977) (“Virtually all evidence is prejudicial or it isn't
material. The prejudice must be ‘unfair.’”). We simply do find that any prejudice caused
by the Rule 404(b) evidence substantially outweighed the probative value of that
evidence.19
C.
Joinder of Count II with other Offenses
The Petitioner contends that the trial court committed error in denying his
motion to sever the hostage count from the remaining charges, after ruling that the Rule
19
We summarily reject Petitioner’s poorly drafted purported alternative
argument that the trial court “erred by admitting too much 404(b) evidence.”
Petitioner appears to argue that the trial court improperly allowed evidence from,
and about, a previously excluded witness; and admitted previously excluded text
messages by Ms. Kivett (this is actually another separate assignment of error).
According to the Petitioner this evidence, combined with the Rule 404(b) evidence,
constituted too much Rule 404(b) evidence and was cumulative. We find no merit
to this argument. See 1 Palmer, et al., Handbook on Evidence, § 403.05[7], at 306
(“The mere fact that evidence is cumulative is not a basis for exclusion under Rule
403, rather, a trial court is only authorized to exclude the ‘needless presentation’ of
cumulative evidence.”).
19
404(b) evidence was not admissible as to the hostage charge. The State argues that the trial
court did not abuse its discretion in denying the motion.
We have held that “[t]he decision to grant a motion for severance pursuant
to W. Va. R. Crim. P. 14(a) is a matter within the sound discretion of the trial court.” Syl.
pt. 3, in part, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988). The standard for
severing charges is set out under Rule 14(a) of the West Virginia Rules of Criminal
Procedure, in part, as follows:
If it appears that a defendant or the state is prejudiced by a joinder of
offenses in an indictment or information or by such joinder for trial
together, the court may order an election or separate trials of the
counts or provide whatever other relief justice requires.
The record shows that the trial court ruled that the Rule 404(b) evidence,
regarding Petitioner’s use of controlled substances to seduce women, was not admissible
with respect to the hostage charge. The State points out that the trial court provided a
limiting instruction each time a witness gave Rule 404(b) testimony, and that the court
included an instruction in its charge. Petitioner argues, without any citation to authorities,
“[t]here is no conceivable way the jury completely disregarded the large amount of 404(b)
evidence when it deliberated Count II.”20 Petitioner’s failure to include any legal authority
20
See 1 Palmer, et al., Handbook on Evidence, § 105.03, at 148 (“Rule 105
relies upon the presumption that jurors will follow instructions to consider evidence
for one purpose, but not another. Significantly, appellate courts are unwilling to
assume that jurors will ignore limiting instructions.”); United States v. Snype, 441
20
in support of his argument is in direct contradiction to this Court’s appellate rules and
administrative order. Specifically, Rule 10(c)(7) of the West Virginia Rules of Appellate
Procedure requires that:
The brief must contain an argument exhibiting clearly the points of
fact and law presented, the standard of review applicable, and citing
the authorities relied on. . . .
Additionally, in an Administrative Order entered December 10, 2012, Re: Filings That Do
Not Comply With the Rules of Appellate Procedure, it provides that “[b]riefs that lack
citation of authority [or] fail to structure an argument applying applicable law” are not in
compliance with this Court’s rules. Insofar as this assignment of error is inadequately
briefed and fails to comply with the administrative order and our appellate rules, this Court
will not address this assignment of error. See State v. Back, __ W. Va. ___, 820 S.E.2d
916, 920 n.4 (2018) (“In his appellate brief, Mr. Back fails to cite to a single authority on
this issue. Accordingly, we decline to address this inadequately briefed issue.”); State v.
Shelby S., No. 14-0456, 2016 WL 2978567, at *5 (W. Va. May 23, 2016) (Memorandum
Decision) (“Here, petitioner’s additional alleged errors are woefully inadequate as he fails
to comply with the administrative order and the West Virginia Rules of Appellate
Procedure. Thus, we decline to address petitioner’s additional alleged errors[.]”).
F.3d 119, 129 (2d Cir. 2006) (“the law recognizes a strong presumption that juries
follow limiting instructions.”); United States v. Francisco, 35 F.3d 116, 119 (4th
Cir. 1994) (“We generally follow the presumption that the jury obeyed the limiting
instructions of the district court.”).
21
D.
Failure to Sever Offenses Occurring on Different Dates
The Petitioner argues that the first-degree murder charge should have been
severed from the other charges because the homicide occurred on a different date. The
State contends that this assignment of error was not preserved for appellate review, because
the Petitioner failed to request severance on this issue. Petitioner has asked this Court to
invoke plain error to review the issue.21 We decline to review the issue under the plain
error rule. In Syllabus point 7 of LaRock, we held, in part, the following:
In clear terms, the plain error rule should be exercised only to avoid a
miscarriage of justice. The discretionary authority of this Court
invoked by lesser errors should be exercised sparingly and should be
reserved for the correction of those few errors that seriously affect the
fairness, integrity, or public reputation of the judicial proceedings.
See State v. Henson, 239 W. Va. 898, 908 n.16, 806 S.E.2d 822, 832 n.16 (2017) (“We also
decline to invoke the plain error doctrine regarding this alleged error[.]”). The alleged
severance error assigned by Petitioner does not meet the high standard for invoking the
plain error rule.
21
We wish to point out that Petitioner’s brief on this issue is quite disingenuous.
Rather than making it clear from the outset that this issue was not raised below, the
brief presents three and a half pages of law explaining why the trial court committed
error in not severing the charges, before the brief mentions in passing that we can
only review the issue under plain error. We caution attorneys that they have a duty
of candor in writing briefs and should not allow overzealousness to obfuscate that
duty.
22
E.
Improperly Responding to Jury Questions
The Petitioner argues next that the trial court committed reversible error in
responding to jury questions in his absence and the absence of his counsel. The State
argues that the trial court properly responded to the seven jury questions and that no
reversible error occurred. Alternatively, the State contends that the Petitioner waived his
right to be present or that his absence was harmless error.
The general right of a criminal defendant to be present during courtroom
proceedings is addressed through the interpretation of the state constitution, a Court rule
and statute. Consequently, our review of the issue raised in this case is plenary. See
Richmond v. Levin, 219 W. Va. 512, 515, 637 S.E.2d 610, 613 (2006) (“interpretations of
the West Virginia Constitution, along with interpretations of statutes and rules, are
primarily questions of law, we apply a de novo review.”) (internal quotation marks and
citation omitted). This Court has previously recognized the constitutional right of a
defendant to be present at critical stages of a criminal proceeding. This right was set out
in Syllabus point 6 of State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977) as follows:
The defendant has a right under Article III, Section 14 of the
West Virginia Constitution to be present at all critical stages in the
criminal proceeding; and when he is not, the State is required to prove
beyond a reasonable doubt that what transpired in his absence was
harmless.
23
See Sisler v. Hawkins, 158 W. Va. 1034, 1039–40, 217 S.E.2d 60, 64 (1975) (“[The] due
process of law under the Federal Constitution requires that a defendant be accorded the
right to be present in person or by counsel at every stage of his trial.”). A criminal
defendant’s right to be present during courtroom proceedings is also addressed in Rule
43(a) of the West Virginia Rules of Criminal Procedure. Rule 43(a) provides the following:
The defendant shall be present at the arraignment, at the time of the
plea, at every stage of the trial including the impaneling of the jury
and the return of the verdict, and at the imposition of sentence, except
as otherwise provided by this rule.
See State v. Barker, 176 W. Va. 553, 556, 346 S.E.2d 344, 347 (1986) (“The right of an
accused to be present at every stage of a criminal trial is also protected by
W. Va. R. Crim. P. 43.”). Finally, the statutory right of a criminal defendant to be present
during criminal proceedings is set out under W.Va. Code § 62-3-2 (1923). This statute
provides in part that “[a] person indicted for felony shall be personally present during the
trial therefor.”22 This Court set out the effect of this statute in Syllabus point 3 of State v.
Blair, 158 W. Va. 647, 214 S.E.2d 330 (1975) as follows:
W.Va. Code 1931, 62-3-2 requires that one accused of a felony
shall be present at every stage of the trial during which his interest
may be affected; and if anything is done at trial in the accused’s
22
The statute, which predates Rule 43(a), is not inconsistent with that rule;
therefore, we may look to the statute and decisions interpreting it for guidance. See
Syl. pt. 5, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999) (“The West
Virginia Rules of Criminal Procedure are the paramount authority controlling
criminal proceedings before the circuit courts of this jurisdiction; any statutory or
common-law procedural rule that conflicts with these Rules is presumptively
without force or effect.”).
24
absence which may have affected him by possibly prejudicing him,
reversible error occurs.
This Court has made clear that the “[t]he right to be present is not a right to
be present at every moment, but a right to be present at all ‘critical stages’ in a criminal
proceeding.” State v. Shabazz, 206 W. Va. 555, 557, 526 S.E.2d 521, 523 (1999). We
have held generally, that “[a] critical stage of a criminal proceeding is where the
defendant’s right to a fair trial will be affected.” Syl. pt. 2, State v. Tiller, 168 W. Va. 522,
285 S.E.2d 371 (1981). See Syl. pt. 8, in part, Blair (“If an accused demonstrates that . . .
. he was absent during a critical stage of the trial proceeding, his conviction of a felony will
be reversed where a possibility of prejudice appears from the abrogation of the
constitutional or statutory right.”).
In the instant case, the issue of the trial court’s response to the seven jury
questions may be disposed of on non-constitutional grounds under Rule 43(a). See Syl. pt.
5, In re Tax Assessments Against Pocahontas Land Corp., 158 W. Va. 229, 210 S.E.2d 641
(1974) (“When it is not necessary in the decision of a case to determine a constitutional
question, this Court will not consider or determine such question.”). In State v. Crabtree,
198 W. Va. 620, 482 S.E.2d 605 (1996) this Court summarily acknowledged that Rule
43(a) required a defendant be present when a trial court responds to a jury question. The
defendant in Crabtree was convicted of recidivism, malicious wounding and battery. One
of the issues raised on appeal involved the trial judge’s communication with the jury
25
outside the presence of the defendant. The opinion found in conclusory fashion that the
defendant had a right under Rule 43(a) to be present when the trial judge responded to the
jury questions. However, the opinion found that the defendant agreed to have the trial court
respond to jury questions outside his presence. In rejecting this assignment of error, the
opinion addressed the matter as follows:
Rule 43(a) requires trial courts to disclose communications with jurors
and provide the defendant with an opportunity to be heard prior to
responding to the communications. Rogers v. United States, 422 U.S.
35, 39, 95 S. Ct. 2091, 2095, 45 L. Ed. 2d 1, 6 (1975). At the time the
trial court informed the parties of the communication and advised
them of his plan to communicate with the jury alone, the defendant
failed to raise an objection, but specifically said he had no objection
to the procedure. Nevertheless the defendant now insists the error
should be corrected under our plain error doctrine. Our consideration
of this issue is controlled by State v. Miller, 194 W. Va. 3, 459 S.E.2d
114 (1995). Under Miller, plain error is only available to correct error
if the error was not waived. Thus, we must first determine whether
the error was waived or forfeited.
****
Any reasonable application of Miller clearly shows that we are
dealing with a waiver. The defendant voluntarily relinquished any
right he had regarding his presence at the time the trial judge
communicated with the jury. The defendant affirmatively approved
the trial judge’s request that he be permitted to engage in discussions
with the jury without the defendant being present. We believe this is
a perfect case of waiver[.]
Crabtree, 198 W. Va. at 630-631, 482 S.E.2d at 615-616. See State v. Cornelius B., No.
15-0109, 2016 WL 597753, at *7 (W. Va. Feb. 12, 2016) (Memorandum Decision) (“We
agree with petitioner’s assertion that he had a right to be present during the process by
26
which the circuit court developed written answers to the jury’s . . . questions given that it
was a critical stage of his proceeding where his right to a fair trial could have been
affected.”).
The decision in Crabtree cited to the United States Supreme Court decision
in Rogers v. United States, in making a summary determination that Rule 43(a) required
the presence of a defendant when a trial court responds to a jury question. Crabtree cited
to Rogers because that decision applied federal Rule 43(a), which our rule is patterned
after,23 to the issue of a federal trial court responding to a jury question.24
The defendant in Rogers was prosecuted for threatening the life of the
President of the United States. During deliberation, the jury sent out a note asking the trial
judge if the court would accept a verdict of guilty with mercy. Without notifying the
defendant or his counsel, the court instructed the marshal to advise the jury that the court’s
23
We frequently look to federal decisions for guidance when we are
construing a rule of this Court that is patterned after a federal rule. See State v.
Hedrick, 204 W. Va. 547, 554, 514 S.E.2d 397, 404 (1999) (“Consequently, because
the relevant provisions of W. Va. R. Crim. P. 46 are substantially the same as Rule
46 of the Federal Rules, we look to the federal courts for guidance.”).
24
Federal Rule 43(a) is drafted as follows:
Unless this rule, Rule 5, or Rule 10 provides otherwise, the
defendant must be present at:
(1) the initial appearance, the initial arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return
of the verdict; and (3) sentencing.
27
answer was in the affirmative. After the jury convicted the defendant, the Supreme Court
granted certiorari. The Supreme Court found that the communication with the jury violated
Rule 43 and that the violation was reversible error:
Federal Rule Crim. Proc. 43 guarantees to a defendant in a criminal
trial the right to be present ‘at every stage of the trial including the
impaneling of the jury and the return of the verdict.’ Cases
interpreting the Rule make it clear, if our decisions prior to the
promulgation of the Rule left any doubt, that the jury’s message
should have been answered in open court and that petitioner’s counsel
should have been given an opportunity to be heard before the trial
judge responded.
Although a violation of Rule 43 may in some circumstances be
harmless error, the nature of the information conveyed to the jury, in
addition to the manner in which it was conveyed, does not permit that
conclusion in this case. The trial judge should not have confined his
response to the jury’s inquiry to an indication of willingness to accept
a verdict with a recommendation of ‘extreme mercy.’ At the very
least, the court should have reminded the jury that the
recommendation would not be binding in any way. In addition, the
response should have included the admonition that the jury had no
sentencing function and should reach its verdict without regard to
what sentence might be imposed.
Rogers, 422 U.S. at 39–40, 95 S. Ct. at 2095 (citations omitted). See United States v.
Anwar, 428 F.3d 1102, 1114 (8th Cir. 2005) (“Under the guarantees of Rule 43(a), jury
questions should be answered in open court, and defense counsel should be given an
opportunity to be heard before the court responds.”); United States v. Pressley, 100 F.3d
57, 59 (7th Cir.1996) (“Failure to secure the defendant’s presence during communications
between the judge and the jury violates Rule 43(a)[.]”); United States v. Rhodes, 32 F.3d
867, 873 (4th Cir. 1994) (“Rogers holds that Rule 43(a) is violated when the defendant is
28
not present during the formulation of an answer to a jury question such as the one made in
this case.”).
In view of the reasoning of Rogers and Crabtree we now hold that under
Rule 43(a) of the West Virginia Rules of Criminal Procedure, a defendant has a right to be
present with counsel and provided with an opportunity to be heard, prior to a trial court
responding to a jury question during its deliberations. This right may be waived and a
violation is subject to harmless error analysis.
Turning to the facts of this case, there is no dispute that Petitioner was present
when the trial court responded to the first two questions submitted by the jury. However,
Petitioner and his counsel testified that trial counsel was not present when the first two jury
questions were submitted. During the hearing on remand the trial judge testified that
Petitioner’s trial counsel was not present for the first question, but that he was not sure if
he was present for the second question. The State contends that Petitioner’s trial counsel
was present for the first and second jury questions.25 The record from the official trial
transcript suggests Petitioner’s trial counsel was not present when the first two jury
questions were submitted. The following is contained in the official trial transcript:
(At 1:20 p.m., the jury sent out a note to the Judge, and the following
proceedings took place at the bench within the presence of the Defendant,
Prosecutor, and the Court:)
25
This assertion is based upon testimony by the bailiff.
29
THE COURT: There’s been a question. Petitioner, I need you to come up
here, sir, since your attorney’s not here. I received a question from the jury,
okay in writing.
***
(At 1:24 p.m., the jury sent out a question to the Judge, and the following
proceedings took place in the presence of the Defendant, Prosecutor, and the
Court:)
THE COURT: (reading note)
The official trial transcript would appear to support Petitioner’s contention that his trial
counsel was not present when the first two questions were submitted. There is no evidence
showing that Petitioner waived his right to have counsel present when the first two
questions were asked. During the remand hearing Petitioner testified that he did not know
that he could object to having the questions responded to without his counsel present.26 In
26
Petitioner was asked about trial counsel’s absence when the first two jury
questions were submitted:
Q. Okay. Did—there has been some questions that the State has asked of
whether or not you objected to Mr. Ours not being present. Did you ever
object and say, hey, you know, I—I want to wait until Mr. Ours is here, or
did you even know you could object? I mean—
A. I didn’t even know I could object.
Q. How far did you go in school?
A. To the seventh grade.
Q. Can you read and write?
A. No, sir.
Q. Okay. So if the Judge were to show you a jury instruction, you wouldn’t
be able to say—tell what it says?
A. No, sir.
30
view of the totality of the circumstances, we find the evidence establishes that trial counsel
was not present when the first two jury questions were submitted. Consequently,
Petitioner’s rights under Rule 43(a) were violated when the trial court responded to the first
two jury questions without his counsel present.
The parties do not dispute that Petitioner was not present when the trial court
responded to the last five questions submitted by the jury. The State relies on the trial
judge’s testimony that Petitioner’s counsel was present for the last five jury questions.
However, trial counsel testified that he was present for only one question and he believes
that was the sixth question. We need not resolve the issue of trial counsel’s presence for
the last five jury questions, because it is undisputed that the Petitioner was not present for
any of those questions.27 Therefore, Petitioner’s rights under Rule 43(a) were violated
because of his absence when the trial court responded to the last five jury questions. See
Barker, 176 W. Va. at 556, 346 S.E.2d at 347 (“We believe, in the case now before us, that
Q. You can’t read or write at all?
A. No, sir.
Q. Okay. Did you ever bring that to the attention of the trial judge, Judge
Nelson?
A. Yes, sir.
Q. Okay. So Judge Nelson knew that you couldn’t read and write?
A. Yeah.
27
Even if we assumed that Petitioner’s counsel was present for the remaining
questions, there is nothing in the record to show that defense counsel waived the
right of the Petitioner to be present.
31
the conduct of the trial judge in communicating with the jury, in the absence of the
appellant and his counsel, was improper.”); State v. Smith, 156 W. Va. 385, 390, 193 S.E.2d
550, 554 (1972) (“The record in this case discloses that the jurors sent a note to the court,
signed by all twelve jurors, stating they could not agree on a verdict but were advised by a
note from the court to continue their deliberations. The passing of writings or notes
between the court and jury is not proper. Upon receipt of the note, the court should have
called the jury back into the court room and there, in the presence of the defendant, given
its further instructions.”).
Under our holding in this case, the State may show that Petitioner
“knowingly and intelligently waived his right to be present.” State v. Brown, 210 W. Va.
14, 22, 552 S.E.2d 390, 398 (2001). See State v. Hamilton, 184 W. Va. 722, 726, 403
S.E.2d 739, 743 (1991) (“Waiver of a defendant's fundamental and constitutional right to
be present at every stage of the proceedings against him may be accomplished. It must be
achieved, however, by the defendant himself in the form of a knowing and intelligent
waiver.”). The State has argued that Petitioner waived his right to be present when the jury
submitted the last five questions. To support this contention, the State points to testimony
by the trial judge indicating that either the sheriff or trial counsel informed him that
Petitioner asked if he could remain in the holding cell while the jury deliberated. However,
the Petitioner testified on remand that after the first two jury questions were submitted, he
32
was involuntarily taken to a holding cell and given lunch while the jury deliberated. He
testified to the issue as follows:
Q. So your testimony is you only recall being here for two questions?
A. That’s correct.
Q. Okay. Did you ever ask to come back into the courtroom?
A. No. I didn’t know I could. They just took me over there.
Q. Did you request to go into the holding facility?
A. No.
Q. Well, who made the decision to take you over to the holding
facility?
A. They—I guess they took me over to eat lunch. Deputy Thorne
come over and asked me what I wanted from McDonald’s.
Assuming, without resolving the matter, that Petitioner asked to be taken to
a holding cell while the jury deliberated, this evidence standing alone does not show a
waiver of the right to be present if the jury submitted questions to the court. We have held
that “waiver must be knowingly and intelligently made and the fact that it was so made
must be conclusively demonstrated on the record.” State v. Hicks, 198 W. Va. 656, 663,
482 S.E.2d 641, 648 (1996). The record in this case simply does not conclusively
demonstrate that Petitioner knowingly and intelligently waived his right to be present, if
the jury submitted questions while deliberating. See State v. Eden, 163 W. Va. 370, 378,
256 S.E.2d 868, 873 (1979) (“The record here discloses no evidence that indicates the
petitioner’s knowing and intelligent waiver of his right to be present at trial.”). On this
33
record, we must reject the State’s contention that Petitioner waived his right to be present
when the last five jury questions were submitted.
The State also argues that any violation of Petitioner’s rights was harmless
error because the responses to the jury questions did not prejudice him. We have held that
the standard of review in determining whether an error is harmless
depends on whether the error was constitutional or nonconstitutional.
. . . As to error not involving the erroneous admission of evidence,
we have held that nonconstitutional error is harmless when it is highly
probable the error did not contribute to the judgment.
Guthrie, 194 W. Va. at 684, 461 S.E.2d at 190. See United States v. Pressley, 100 F.3d 57,
59-60 (7th Cir. 1996) (“However, error under Rule 43(a) may be harmless, not mandating
reversal and a new trial. . . . Accordingly, when a defendant’s rights under Rule 43(a) are
violated, the defendant is entitled to a new trial only if the violation is likely to have affected
the jury’s verdict.”). The questions asked by the jury and the trial court’s responses are as
follows:
Question 1: What is the difference in Count III and Count IV?
Answer: Count III—Possession of Xanax with intent to deliver to
Lexi. Count IV—Possession of Xanax with the intent to deliver to
Danielle Fann.28
28
The original Count IV of the indictment, delivery of Oxycodone, was
dismissed because it was the underlying offense for the felony-murder charge. In an
effort not to confuse the jury during deliberation, the original Count V (delivery of
Xanax) was renamed Count IV. Danielle Fann was at the party at Petitioner’s home
on September 12.
34
Question 2: Are we allowed to have access to the account listing that
Mr. Ours showed on the overhead projector?
Answer: No—you have received all you will.
Question 3: Was she detained on a certain date on Count II?
Answer: The ___ day of September 2013.
Question 4: Does this pertain to Lexi?
Answer: Yes.
Question 5. We realize we cannot have the phone but can we have the
print out of the text messages Exhibit #8?
Answer: (The trial judge testified at the hearing that he sent the exhibit
to the jury.)
Question 6: Legal definition of detain?
Answer: To detain as the possession of personality. To arrest, to
check, to delay, to hinder, to hold or keep in custody, to retard, to
restrain from proceeding, to stay, to stop.
Question 7: Legal definition of beyond a reasonable doubt?
Answer: A reasonable doubt is a doubt based upon reason and
common sense—the kind of doubt that would make a reasonable
person hesitate to act. Proof beyond a reasonable doubt, therefore,
must be proof of such a convincing character that a reasonable person
would not hesitate to rely and act upon it.
In our review of the questions and responses, we do not find that the trial
court’s responses were prejudicial to Petitioner. See State v. Murray, No. 12-1535, 2013
WL 6231790 (W. Va. Dec. 2, 2013) (Memorandum Decision) (finding no prejudice in trial
court’s response to three jury questions without the defendant being present—although
counsel was present). The Petitioner specifically argues that the answer to Question 3 was
35
prejudicial. In Question 3 the jury asked the trial court if the victim was “detained on a
certain date on Count II?”29 Petitioner contends that the trial court’s response, indicating
when the detention occurred, could have been read to suggest that the victim was in fact
detained. This argument is undercut by Question 6 from the jury. In Question 6 the jury
specifically asked for the definition of detain. It is not reasonable to believe that the jury
interpreted the trial judge’s response to Question 3 as meaning the Petitioner detained the
victim, in light of the fact that Question 6 asked for the definition of detain. The logical
inference from Question 6 is that the jury had not resolved the issue of whether the victim
was detained. In sum, we find no reversible error in the manner in which the trial judge
responded to the seven jury questions.30
29
Question 3 is to be read in conjunction with Question 4, because Question
4 identifies the person referenced to in Question 3.
30
Petitioner also argued in his brief that he was prejudiced by Question 5
because he does not know how the response was conveyed to the jury. This issue
has no merit. The trial judge testified at the hearing that the requested exhibit was
sent to the jury. During oral argument the Petitioner asserted for the first time that
the response to Question 1 was incorrect, because the indictment did not specifically
name the person receiving the controlled substances in Count III and Count IV. We
reject this argument. The response was correct based upon the evidence presented
at trial, which showed that Ms. Cantwell and Danielle Fann were provided Xanax
at the party on September 12.
36
F.
Admission of Previously Excluded Evidence
Prior to trial the initial trial judge, Judge Jordan, held a McGinnis hearing
regarding a Rule 404(b) motion filed by the State to introduce text messages between
Petitioner and his daughter, Ms. Kivett. The text messages involved drug activity and
communication concerning the death of Ms. Cantwell. Judge Jordan found that the State
failed to satisfy McGinnis because it did not use a witness with personal knowledge of the
text messages.31 After Judge Jordan was replaced by Judge Nelson, the State filed another
Rule 404(b) motion seeking to revisit the issue of admitting the text messages. The State
argued that it had located Ms. Kivett and that it would introduce the text messages through
her testimony. Judge Nelson ruled, without holding a hearing that the text messages
constituted intrinsic evidence and could be introduced through Ms. Kivett.32 Petitioner
contends that Judge Nelson erred in overruling Judge Jordan for two reasons:33 (1) the
31
The State called two investigating officers to present the text messages at
the hearing.
32
Our cases have “consistently held that evidence which is ‘intrinsic’ to the
indicted charge is not governed by Rule 404(b).” State v. Harris, 230 W.Va. 717,
722, 742 S.E.2d 133, 138 (2013). See State v. Spinks, 239 W. Va. 588, 605, 803
S.E.2d 558, 575 (2017); State v. Bowling, 232 W. Va. 529, 547, 753 S.E.2d 27, 45
(2013); LaRock, 196 W. Va. at 312 n.29, 470 S.E.2d at 631 n.29.
33
As a successor judge, Judge Nelson was empowered to take any action that
Judge Jordan was authorized to take. See Syl. pt. 7, in part, Coleman v. Sopher, 201
W.Va. 588, 499 S.E.2d 592 (1997) (“Generally, when a successor judge is properly
assigned ..., such successor judge steps into the shoes of his or her predecessor and,
when the transcript of the proceedings is sufficient, may take any action that such
predecessor may properly have taken, either upon proper motion or sua sponte.”).
37
State’s motion was filed after the scheduling order deadline and (2) because no new
evidence was presented.
Petitioner’s brief has failed to present any legal authority to support this
assignment of error. We have made clear that “[a] skeletal ‘argument,’ really nothing more
than an assertion, does not preserve a claim[.]” State, Dep’t of Health v. Robert Morris N.,
195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995) (internal quotation marks and citations
omitted). We decline to address this inadequately briefed issue on the merits. See State v.
Lambert, 236 W. Va. 80, 100, 777 S.E.2d 649, 669 (2015) (“As a result of Mr. Lambert's
failure to adequately brief this issue, we will not consider the matter.”); State v. Trail, 236
W. Va. 167, 179 n.15, 778 S.E.2d 616, 628 n.15 (2015) (“Ms. Trail additionally asserts,
without supporting argument or citation to legal authority, that the circuit court's admission
of the challenged photographs violated her due process and equal protection rights.
Because this issue was not developed, we find the issue was not adequately briefed and we
deem the matter waived.”).
38
G.
Insufficient Evidence to Support Two Convictions
The last issue raised by Petitioner is that the evidence was insufficient as to Counts
I and V.34 The State contends that the evidence was sufficient to find Petitioner guilty
beyond reasonable doubt on both counts.
The standard that guides our review of a claim of insufficiency of the
evidence is set out in Syllabus points 1 and 3 of State v. Guthrie:
1. The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such
evidence, if believed, is sufficient to convince a reasonable person of
the defendant’s guilt beyond a reasonable doubt. Thus, the relevant
inquiry is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proved beyond a reasonable doubt.
3. A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution and must
credit all inferences and credibility assessments that the jury might
have drawn in favor of the prosecution. The evidence need not be
inconsistent with every conclusion save that of guilt so long as the
jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a
jury verdict should be set aside only when the record contains no
evidence, regardless of how it is weighed, from which the jury could
34
Petitioner contended that the evidence was insufficient for all of the
charges, but he only briefed the sufficiency of evidence for Counts I and V.
“Although we liberally construe briefs in determining issues presented for review,
issues which are . . . mentioned only in passing but are not supported with pertinent
authority, are not considered on appeal.” LaRock, 196 W.Va. at 302, 470 S.E.2d at
621. We find that the Petitioner has waived the issue of the sufficiency of the
evidence for the other counts by failing to brief those charges.
39
find guilt beyond a reasonable doubt. To the extent that our prior
cases are inconsistent, they are expressly overruled.
The Petitioner contends that the State failed to prove Count I, first-degree
murder, beyond a reasonable doubt. The jury found Petitioner guilty of first-degree murder
under a felony-murder theory. The underlying felony was the delivery of the controlled
substance Oxycodone to Ms. Cantwell. This drug was determined to have caused her
death. Petitioner cites to the testimony of an investigating deputy who testified that he did
not have any evidence of Petitioner giving Ms. Cantwell controlled substances after the
party on September 12.
The State argues that the jury was presented with evidence that Petitioner
supplied Ms. Cantwell with the drugs that caused her death. The State points to the
testimony of Petitioner’s daughter, Ms. Kivett. The jury was informed by Ms. Kivett that
the Petitioner told her that he believed he killed Ms. Cantwell by giving her too many pills.
The State argues further that the jury was presented with evidence that Petitioner had a
prescription for the drugs Oxycodone and Xanax. The jury was also presented with
evidence that Ms. Cantwell died from an overdose of Oxycodone, and that Xanax was also
found in her system. Viewing the evidence in the light most favorable to the State, with
all inferences and credibility determinations also viewed in the light most favorable to the
State, we believe the jury could find beyond a reasonable doubt that Petitioner committed
the offense set out in Count I. See State v. Henson, 239 W. Va. 898, 911, 806 S.E.2d 822,
835 (2017) (“when all the evidence offered against the Petitioners is viewed in the light
40
most favorable to the State, and when all inferences and credibility determinations are also
viewed in the light most favorable to the State, there was sufficient evidence to sustain the
Petitioners’ respective convictions in this case beyond a reasonable doubt.”).
The offense set out in Count V charged the Petitioner with delivering the
controlled substance Alprazolam.35 The State presented evidence to show that Danielle
Fann received this drug. Petitioner contends that the State failed to prove this charge
because Ms. Fann testified that he gave her Xanax. The State correctly argues that the
issue has no merit because there was expert testimony that Xanax is another name for
Alprazolam.36 We agree with the State that this issue has no merit, and that the evidence
was sufficient for the jury to find beyond a reasonable doubt that Petitioner committed the
offense set out in Count V. See State v. Wasanyi, ___ W.Va. ___, 821 S.E.2d 1, 5 (2018)
(“He was also convicted of five counts of Delivery of Alprazolam (Xanax) and sentenced
to one to three years in the penitentiary for each of those convictions.”); State v. McCoy,
No. 15-1142, 2016 WL 6651585, at *5 (W. Va. Nov. 10, 2016) (“petitioner’s ability to
deliberate, consider options, rationally reason, and think about action or future action was
35
As previously mentioned, the original Count V was renamed Count IV
after the original Count IV (delivery of Oxycodone) was dismissed. The Petitioner
has briefed this issue using Count V as it appeared in the indictment.
36
Further, during cross-examination of the toxicologist, Dr. Kraner, defense
counsel asked the following question:
Q. The alprazolam, that’s the common name for Xanax; right?
A. Yes.
41
impaired due to the combining exacerbating effects of alcohol and alprazolam (also known
as Xanax) in his system.”).
IV.
CONCLUSION
In view of the foregoing, we affirm the April 11, 2016, order of the circuit
court sentencing the Petitioner for his convictions of first-degree murder, holding a hostage
to defile, and two counts of possession of a controlled substance with intent to deliver.
Affirmed.
42