George J. Cosenza
Cosenza & Underwood
Parkersburg, West Virginia
Attorney for the Appellees
George M. Torres
Parkersburg, West Virginia
Attorney for the Appellants
JUSTICE WORKMAN delivered the Opinion of the Court.
JUDGE RECHT sitting by temporary assignment.
1. "When a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it." Syl. Pt. 4, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958).
2. "Rule 703 of the West Virginia Rules of Evidence allows an expert to base his
opinion on (1) personal observations; (2) facts or data, admissible in evidence, and presented
to the expert at or before trial; and (3) information otherwise inadmissible in evidence, if this
type of information is reasonably relied upon by experts in the witness' field." Syl. Pt. 2,
Mayhorn v. Logan Medical Found., 193 W.Va. 42, 454 S.E.2d 87 (1994).
3. "Where objections were not shown to have been made in the trial court, and the
matters concerned were not jurisdictional in character, such objections will not be considered
on appeal." Syl. Pt. 1, State Rd. Comm'n v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206
4. "Rule 609(a)(2) of the West Virginia Rules of Evidence divides the criminal
convictions which can be used to impeach a witness other than a criminal defendant into two
categories: (A) crimes 'punishable by imprisonment in excess of one year,' and (B) crimes
'involving dishonesty or false statements regardless of the punishment.'" Syl. Pt. 2, CGM Contractors v. Contractors Envtl. Servs., Inc., 181 W.Va. 679, 383 S.E.2d 861 (1989).
vidence that a witness other than the accused in a criminal case has been
convicted of a crime
is admissible for the purpose of impeachment under
West Virginia Rule
of Evidence 609(a)(2)(B)
when the underlying facts show that the crime involved dishonesty
or false statement.
Dick and Barbara Bowser, doing business as Bowser Construction (hereinafter "the
Appellants"), appeal a judgment of the Circuit Court of Wood County for the Appellees,
William A. and Tereca S. Wilkinson, in a suit for breach of a contract to perform home
improvements. The Appellants assert that the $23,525 verdict was excessive and not
supported by the evidence, and that the circuit court wrongfully allowed the jury to hear
evidence regarding Dick Bowser's conviction for an unrelated misdemeanor. For the reasons
set out below, we affirm the judgment entered by the circuit court pursuant to the jury
verdict.See footnote 1
In June 1992, the Appellees contracted with the Appellants to perform extensive
improvements to a residential property owned by the Appellees. The contract price for the
work was $24,918. The Appellees borrowed $25,000 from the City of Parkersburg, pursuant
to a housing program, to finance the project. According to the Appellees, the Appellants
failed to make the improvements in a good and workmanlike manner, and the Appellees sued for $50,000 in damages.
The case was tried in the Circuit Court of Wood County. At trial, the Appellees
presented the testimony of a contractor, Joel Stout, who had examined the house after the
Appellants had worked on it. He noted bowed siding, leaking gutters, poorly installed
windows, lack of insulation, and other problems, and estimated that it would cost $8,275 to
repair the faulty workmanship and finish the improvements the Appellants had contracted
to perform. The Appellees next presented a real estate appraiser, Larry McDaniel, who
testified about the value of the house. He estimated that the value of the house, with the
improvements the Appellants agreed to perform, would be $61,000. To determine the value
"as is," the appraiser subtracted the $8,275 necessary to complete the improvements, and also
25% of its finished value, or $15,250, which he termed a "reduction by purchaser."
calculation resulted in a current value of $37,475. By subtracting the "as is" value ($37,475)
from the finished value ($61,000), Mr. McDaniel concluded that the damage resulting from
the Appellants' failure to complete the project in a workmanlike manner was $23,525.See footnote 2
The appraiser explained the "reduction by purchaser" as an allowance for a typical
purchaser's reaction to the general condition of the home. The appraisal report states that
in the appraiser's opinion a purchaser would discount the value of this house substantially
due to the cost and inconvenience of buying a home in a state of disrepair, and the
uncertainty of the date on which work would be completed. The report indicates further that
the amount of the discount was determined with reference to other market sales in which the
price of homes was affected by disrepair, lack of care, or fire damage.
The Appellants presented their own appraiser, Jackie Mullenix, who testified that in
her opinion the "as is" value of the house was $46,000. Mullenix did not estimate what the
value would be with improvements, and did not give any opinion as to any change in value
resulting from work performed by the Appellants. The briefs indicate that Appellant Dick
Bowser and certain subcontractors who worked on the house also testified, but their
testimony is not part of the record on appeal.
The only portion of Appellant Dick Bowser's testimony before the Court relates to
the admission of his plea of guilty to a misdemeanor charge of obstruction of justice, West
Virginia Code § 61-5-17 (Supp. 1996), entered in an unrelated matter the week before trial.
During cross-examination of Mr. Bowser, the Appellees sought to admit a certified copy of
the conviction. The Appellants objected. In a bench conference, the Appellees offered the
conviction for the purpose of impeachment, asserting that it was admissible under West Virginia Rule of Evidence 609(a)(2)(B). The Appellants opposed the admission of the prior
conviction, asserting that the offense of obstructing justice does not necessarily involve
dishonesty or false statement. The trial court admitted both the conviction and the
underlying complaint, which indicated that the charge was based on the giving of false
information to the Wage and Hour Board by Appellant Dick Bowser. The trial court
reasoned that this clearly related to the witness' credibility. The cross-examination of Mr.
Bowser is not part of the record on appeal, but it appears from the redirect and re-cross
examinations, which are included in the record, that the court allowed counsel for both
parties to examine Mr. Bowser with respect to the circumstances of the guilty plea.
See footnote 3
After hearing all the evidence, the jury returned a verdict for the Appellees in the
amount of $23,525, which was the same as the Appellees' real estate appraiser's estimate of
the damage. The Appellants filed motions for post-judgment relief, which were denied, and
thereafter filed this appeal. On appeal, the Bowsers assign two errors: First, that the verdict was excessive, not the product of a preponderance of the evidence, and based upon
conflicting, unfounded, speculative, and conjectural expert opinion; and, second, that the
circuit court erred by admitting evidence of the prior misdemeanor conviction of Dick
Bowser for the purpose of impeaching his testimony. See footnote 4
We first address the issue of the jury verdict, and note at the outset that, "[w]hen a
case involving conflicting testimony and circumstances has been fairly tried, under proper
instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight
of the evidence or without sufficient evidence to support it." Syl. Pt. 4, Laslo v. Griffith, 143
W.Va. 469, 102 S.E.2d 894 (1958). The Appellants initially complain of the reliance by the
jury and/or the Appellees' expert appraiser on the testimony of the contractor, Joel Stout, that
it would cost $8,275 to correct the faulty workmanship. The Appellants assert that Stout's
determination of the cost to repair was "incomplete, unprofessional and faulty," based on
assertions that his examination of the subject property was incomplete and that he failed to
take into account the fact that the Appellees themselves had performed some work on the
house. It appears from the record that all facts relevant to this assertion were presented to the jury. The weight ascribable to Mr. Stout's testimony is an issue for the jury, and we will
not second-guess that body's conclusions in this regard on appeal. See Syl. Pt. 2, State v.
Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).
Furthermore, with regard to the appraiser's reliance on the contractor's estimate, an
expert witness has wide latitude in this matter:
Rule 703 of the West Virginia Rules of Evidence allows an expert to base his opinion on: (1) personal observations; (2) facts or data, admissible in evidence, and presented to the expert at or before trial; and (3) information otherwise inadmissible in evidence, if this type of information is reasonably relied upon by experts in the witness' field.
Syl. Pt. 2, Mayhorn v. Logan Medical Found., 193 W.Va. 42, 454 S.E.2d 87 (1994). Mr.
Stout's testimony falls within the second category, as admissible facts or data presented to
the expert at or before trial. We therefore find no error in the appraiser's use of this
The Appellants also complain that the "reduction by purchaser" factor employed by
the Appellees' appraiser was speculative and subjective, and ask this Court to grant a new
trial on that basis. The Appellants did not, however, object to either Mr. McDaniel's
qualification as an expert or to his testimony regarding the "reduction by purchaser" when
it was introduced. It has long been the law in this State that "[w]here objections were not
shown to have been made in the trial court, and the matters concerned were not jurisdictional
in character, such objections will not be considered on appeal." Syl. Pt. 1, State Rd. Comm'n v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964). By failing to object to this
evidence at trial, the Appellants waived their right to raise the issue on appeal.See footnote 5
We next address whether evidence of Mr. Bowser's plea of guilty to a misdemeanor
charge of obstruction of justice was properly admitted under West Virginia Rule of Evidence
609(a)(2)(B). As set out in syllabus point two of CGM Contractors v. Contractors
Environmental Services, Inc., 181 W.Va. 679, 383 S.E.2d 861 (1989),
Rule 609(a)(2) of the West Virginia Rules of Evidence divides the criminal convictions which can be used to impeach a witness other than a criminal defendant into two categories: (A) crimes "punishable by imprisonment in excess of one year," and (B) crimes "involving dishonesty or false statements regardless of the punishment."
Because obstruction is a misdemeanor punishable by less than a year in prison, the issue presented in the case before us is whether Mr. Bowser's obstruction conviction "involved dishonesty or false statement." West Virginia Code § 61-5-17(a) (Supp. 1996) defines the crime of obstructing an officer:
Any person who by threats, menaces, acts or otherwise, shall forcibly or illegally hinder, obstruct, or oppose, or attempt to obstruct or oppose, or shall counsel, advise or invite others to hinder, obstruct or oppose any officer in this state (whether civil or military) in the lawful exercise or discharge of his official duty, shall, for every such offense, be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty nor more than five hundred dollars, and may, in the discretion of the court, be imprisoned not exceeding one year.
The statutory definition includes no mention of dishonesty or false statement. The underlying charge, however, was giving false information to the Wage and Hour Board. The circuit court ruled that the defendant's obstruction conviction fell within Rule 609(a)(2)(B) even though the crime of obstruction does not necessarily involve dishonesty or false statement, because false statement was in fact a part of the crime to which the defendant pled guilty.
The Appellant urges this Court to adopt the view taken by a minority of courts, which
limits application of this provision to crimes such as perjury, false statement, and fraud,
which have deceit or falsification as an element of the crime itself. See, e.g., Cree v.
Hatcher, 969 F.2d 34 (3d Cir. 1992) (conviction for willful failure to file federal income tax
returns held inadmissible for impeachment because dishonesty or false statement was not an
element of the statutory offense); United States v. Lewis, 626 F.2d 940, 946 (D.C.Cir. 1980)
(drug convictions not admissible for impeachment where dishonesty or false statement was
not an element of the crime charged).
This Court, however, has previously indicated a willingness to look beyond the
elements of the crime charged to see whether the underlying facts involved untruthfulness.
In State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994), we upheld the exclusion of a prior conviction for larceny, explaining:
In note 1 of CGM Contractors, Inc. v. Contractors Environmental Services, Inc., 182 W. Va. at 682, 383 S.E.2d at 864, we recognized that crimes falling under Rule 609(a)(2)(B) were often called crimen falsi:
"Crimen falsi generally refers 'to crimes in the nature of
perjury or subornation of perjury, false statement, criminal
fraud, embezzlement, false pretense, or any other offense which
involves some element of deceitfulness, untruthfulness, or
falsification bearing on a witness' propensity to testify
truthfully.' Black's Law Dictionary 335 (5th ed. 1979)."
Although there has been some disagreement, "federal courts and most
state courts are unwilling to conclude that offenses such as petty larceny,
shoplifting, robbery, possession of a weapon, and narcotics violations are per
se crimes of 'dishonesty and false statement.'" . . . In the present case, the
defendant failed to show that Mr. Hill's prior conviction of larceny was based
on facts showing deceitfulness or falsification. We, therefore, believe that the
trial court correctly refused to allow the defendant to impeach Mr. Hill with
his prior conviction.
191 W.Va. at 91, 443 S.E.2d at 248 (emphasis added). See also United States v.
Cunningham, 638 F.2d 696, 698-99 (4th Cir. 1981) (conviction for worthless checks properly
excluded where no proof that witness's crime involved dishonesty or false statement).
Based on these precedents, we conclude that
vidence that a witness other than the
accused in a criminal case has been convicted of a crime
is admissible for the purpose of
West Virginia Rule of Evidence 609(a)(2)(B)
when the underlying facts
show that the crime involved dishonesty or false statement.
See footnote 6
We note that the burden of showing that a conviction is admissible is on the party offering it for impeachment. See
v. Jenkins, 191 W.Va. 87, 91, 443 S.E.2d 244, 248 (1994);
1 Franklin Cleckley, Handbook
on West Virginia Evidence 714 (3d ed. 1994)
Here, the trial court did not err in first
determining whether the crime involved dishonesty or false statement, then admitting the
evidence after the Appellees presented evidence showing that the underlying charge was
submitting false statements to the
Wage and Hour Board.See footnote 7
In the alternative, the Appellants assert that, if admissible, the evidence of Mr.
Bowser's prior conviction should have been restricted to the crime charged, the date, and the
disposition of the case. This is the rule in federal court, at least with respect to the admission
of a criminal defendant's prior convictions. See, e.g., United States v. Mitchell, 1 F.3d 235,
245 (4th Cir. 1993) (limiting cross-examination to the name of the crime, the time and place
of conviction, and punishment). It is also recognized that if a witness attempts to explain a guilty plea on direct examination, cross-examination is allowed on facts relevant to the direct
examination See, e.g., United States v. Wolf, 561 F.2d 1376, 1381 (10th Cir. 1977).
In the current situation, that is, an offer of a misdemeanor conviction for the purpose
of impeachment under Rule 609(a)(2)(B), the judge should initially receive the evidence
offered on the issue of dishonesty or false statement out of the hearing of the jury. See
W.Va.R.Evid. 103(c). After making a determination that the conviction is admissible, it is
within the discretion of the trial judge to allow the parties to present evidence regarding the
facts underlying the conviction to the jury, insofar as it is relevant to the witness's ability to
testify truthfully. See Syl. Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983). In
the case before us, the court did not abuse its discretion in allowing the jury to hear evidence
regarding the underlying charge.
For the foregoing reasons, we affirm the judgment of the circuit court.
Footnote: 1 The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme Court of Appeals effective October 16, 1996. The Honorable Gaston Caperton, Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on that same date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing October 15, 1996, and continuing until further order of this Court.
Footnote: 2 The Appellees' appraiser noted that he had not included in his estimate of damages any amount for loss of income or inconvenience to the Appellees. His estimate was limited to the effect of the breach of contract on the value of the house itself. Presumably, the Appellees also lost the enjoyment of the house during the time that this action was pending, if they intended to occupy it themselves, or either rental income or interest on the proceeds of sale of the house, if they intended either to rent it out or sell it when completed.
Footnote: 3 On redirect, Appellant Dick Bowser explained that he pled guilty to obstruction and paid a $50 fine in order to clear up what he characterized as a misunderstanding. According to the Appellant, he had purchased a warehouse, which included the contents. When the Appellant wanted to use the contents of the warehouse in a project, he was required to reflect the cost of the materials on the building permit application. He maintained that he sought advice from someone associated with the building code about how to treat the warehouse materials. Based on the advice he allegedly received, the Appellant submitted an affidavit signed by the previous owner of the warehouse and its contents saying that the materials had been given to him. Bowser was later charged with giving false information, but was permitted to plead guilty to obstruction and pay the fine when he explained the surrounding circumstances.
Footnote: 4 There was, in addition, some discussion of the proper measure of damages, both in the briefs and at oral argument. The Appellants assigned no error with respect to this issue, however, and the Appellees indicated at oral argument that the instruction on damages was agreed upon by the parties. Because that instruction is not before the Court, and there apparently was no objection to it below, we do not address the issue of the proper measure of damages in this opinion. See Syl. Pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981); Syl. Pt. 1, State Rd. Comm'n v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).
Footnote: 5 It should also be noted that once an expert witness is permitted to testify, it is within the province of the jury to evaluate his or her testimony, credentials, background, and qualifications. The Appellants had ample opportunity to cross-examine the expert and to reveal any weakness in his opinion. See Cargill v. Balloon Works, Inc., 185 W.Va. 142, 405 S.E.2d 642 (1991).
Footnote: 6 See generally 1 Franklin Cleckley, Handbook on West Virginia Evidence 714 (3d ed. 1994):
A substantial gray area exists with respect to offenses which are not crimen
falsi per se but which may actually have involved dishonesty or a false
statement. Counsel relying on a conviction not plainly within FRE
609(a)(2) and WVRE 609(a)(2)(B) should be permitted to demonstrate the
conviction's crimen falsi characteristics by proving that the offense was
committed through false statements or dishonesty. A crime of larceny may
not be a crimen falsi offense if the thief committed the crime by shoplifting,
but a crime of larceny committed through trick or deception would be
crimen falsi in nature.