Scott R. Smith
Prosecuting Attorney The Law Offices of Mark A. Blevins
William J. Ihlenfeld, II Wheeling, West Virginia
Assistant Prosecuting Attorney Attorneys for the Appellant
Wheeling, West Virginia
Attorneys for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
1. Under the Constitution and laws of this
state, a crime can be prosecuted and punished only in the state and county
where the alleged offense was committed. Syl. Pt. 2, State v. McAllister,
65 W.Va. 97, 63 S.E. 758 (1909).
2. Lack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion. Syl. Pt. 3, Charleston Apartments Corp. v. Appalachian Elec. Power Co., 118 W.Va. 694, 192 S.E. 294 (1937).
3. The offenses of sexual assault in the second degree and robbery may constitute continuing offenses for purposes of criminal prosecution within the territorial jurisdiction of the state of West Virginia. In order to be considered a continuing offense, the facts must demonstrate that at least one substantial or material element of the alleged sexual assault or robbery occurred within this state as part of a sequential chain of events.
4. The judge and jury share responsibility for the ultimate determination of territorial jurisdiction in a criminal case involving controverted jurisdictional facts. The court must first determine as a matter of law whether the elemental act or consequence at the heart of the disputed evidence would be sufficient to establish jurisdiction if it occurred within the state. If sufficiency is found by the court, the matter is submitted to the jury for determination of whether the evidence demonstrates beyond a reasonable doubt that the act or consequence at issue actually occurred within the borders of the state.
5. The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless clearly wrong. Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).
6. Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules. Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).
7. Events, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered res gestae and admissible at trial. Syl. Pt. 3, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa 173 W.Va. 43, 311 S.E.2d 412 (1983).
8. Other criminal act evidence admissible
as part of the res gestae or same transaction introduced for the purpose
of explaining the crime charged must be confined to that which is reasonably
necessary to accomplish such purpose. Syl. Pt. 1, in part, State
v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978).
This case involves an appeal by Michael O'Dell
Dennis (hereinafter referred to as Appellant) of his conviction
by jury trial in the Circuit Court of Ohio County on August 22, 2002, of
the offenses of kidnapping, second degree robbery, two counts of second degree
sexual assault, violating a domestic violence protective order and domestic
footnote 1) In challenging his convictions, Appellant claims
the trial court committed error by: failing to dismiss the sexual assault
and robbery charges because any relevant act occurred in Ohio rather than
West Virginia; refusing to declare a mistrial when it became known during
trial that the mother of one of the jurors formerly worked for the prosecutor
and was working for the circuit clerk's office at the time of trial; not
permitting Appellant to offer expert testimony to rebut the state's evidence
about characteristics of battered woman's syndrome (hereinafter
referred to as BWS); allowing the introduction of impermissible
hearsay evidence through various witnesses who repeated the victim's statements;
allowing admission of testimony of prior crimes, wrongs or acts of Appellant;
permitting a nurse to testify as an expert regarding the victim's injuries;
failing to recognize that law enforcement conducted an inadequate investigation; and not taking corrective action
to instruct the jury about improper remarks of the prosecutor.
For the reasons set out below, the judgment order
is affirmed in part and reversed in part, with the case remanded to the lower
court for further proceedings consistent with this opinion.
Explaining how Appellant's behavior became controlling
and possessive in the months prior to the dates in July 2001, Ms. Sands testified
about specific incidences where Appellant used force to keep her away from
other people. In order to make her comply with his wishes, Ms. Sands said that Appellant had at one point placed his hand
over her mouth and nose so that she could not breathe; other examples included
holding her captive in a house and slapping her with his hands and hitting
her on the legs with a telephone cord. She also related that after she had
terminated her relationship with Appellant in late April 2001, he used force
to get into Ms. Sands' car with Ms. Sands and her male companion, and threatened
to stab the companion in the neck with a screwdriver Appellant had located
in the car. Ms. Sands obtained domestic violence protective orders in Wetzel
County against Appellant. The protective orders did not deter Appellant who
went to Ms. Sands' place of work, Telespectrum, (See
footnote 2) in Wheeling, West Virginia on June 27, 2001,
while a protective order was in effect. Ms. Sands said that Appellant lured
her to join him outside by informing her that he had their baby and she should
come out and say good bye to him. When she realized Appellant was lying,
Ms. Sands said she called her grandmother who lived near her in Wetzel County
and with whom she had a close relationship. The grandmother thereafter called
the police and Appellant was arrested by two Wheeling police officers for
violating the protective order then in force. According to Ms. Sands, Appellant
employed a similar ruse to get her to leave work on July 23, 2001.
Ms. Sands testified that on July 23, 2001, she was at
her work station at Telespectrum when one of her friends approached her to tell
her that Appellant was outside. When she did not go outside to see him, Appellant
came into her work area. Ms. Sands said Appellant tried to get her to leave work
by telling her he had learned about a court hearing being conducted that morning
at which Ms. Sands' mother was trying to obtain custody of the baby. As Ms. Sands
was living with her mother at the time and her mother had not told her about
such a hearing, Ms. Sands said saw no reason to believe Appellant. A supervisor
who testified at trial said that when she asked Appellant to leave he willingly
left without incident. According to Ms. Sands, as the supervisor was walking
away, Appellant held up his shirt so that Ms. Sands could see he had a gun in
the waistband of his pants, and at the same time Appellant informed her that
if she did not come outside of the building at her next break then he would be
returning to cause a scene. Ms. Sands went outside on her next break
around noon to find Appellant near the door with the gun still underneath his
shirt. Ms. Sands maintains that she then walked away with Appellant because he
said that if she did not he would kill her and then kill himself. When they arrived
at a car which Ms. Sands knew belonged to Appellant's father, Ms. Sands said
she tried to turn around and return to work because she knew the father would
not knowingly allow Appellant to use the car because the son's driver's license
had been suspended. In response to her attempts to leave, Ms. Sands contends
that Appellant grabbed her, punched the back of her head and held the gun up to the area of her heart. The struggle resulted in Ms. Sands being
forced onto the floor of the front passenger seat of the car.
Although Ms. Sands could not see where they were
going, she said that Appellant drove around for a long period of time. It
appears that Appellant drove to Ohio, but it is not entirely clear from Ms.
Sands' testimony whether the first stop Appellant made in Ohio was at Barkcamp
State Park (hereinafter referred to as Barkcamp) or a BP gas
station located in the vicinity of the Interstate 70 exit ramp for Barkcamp. (See
footnote 3) While the record does not fix a time when the
couple were at Barkcamp, a credit card receipt in the record established
that the stop at the BP gas station was made approximately five hours after
Ms. Sands went on her break at Telespectrum. Regardless of the sequence,
significant events occurred at each stop.
Ms. Sands said that Appellant used her credit card at the BP gas station against her wishes. She further explained that she tried to get out of the car while Appellant was pumping gas, but he grabbed her by her clothes and pulled her back in the car, causing her shirt to stretch out of shape and the strap of her bra to break. The damage done to the clothing required Ms. Sands to put on a different shirt that was in the car.
According to Ms. Sands, Barkcamp is where she was raped by Appellant. Ms. Sands testified that when she got out of the car at Barkcamp Appellant pushed her towards the woods, forcing her to walk in the underbrush rather than on a nearby path. As related by Ms. Sands, Appellant told her he did not want her to walk on the path because he wanted her to suffer like he had to suffer, because he used to hide in the woods whenever the police were looking for him for violating a protective order she had obtained against him. Ms. Sands explained that they argued as they walked until they came up to a fallen tree, and then Appellant pushed her down over the tree where he raped her vaginally and anally. Ms. Sands was then forced by Appellant to walk through the underbrush on the return trip to the car.
Ms. Sands related that the next stop was at a Subway
shop where Appellant purchased a sandwich. (See
footnote 4) According to Ms. Sands, she stayed in the car
while Appellant went into the Subway, and she did not attempt to leave the
car or run away. Thereafter, Appellant drove to Senecaville Lake, (See
footnote 5) where the couple fed bread from the sandwich
purchased at Subway to the ducks. Ms. Sands said that when they left the
lake she did not see where they were driving because Appellant made her keep
her head down until the next stop at Wolf Run State Park (hereinafter referred to as Wolf Run) near Caldwell,
footnote 6) According to a Wolf Run ranger, Appellant parked
his car at the far end of the parking lot near the ranger station and walked
to the station to get information about the park facilities. Appellant then
returned to the car and, as Ms. Sands explained, Appellant drove to Hannibal,
Ohio, where they parked in a wide spot and stayed the night in
the car. (See
footnote 7) On cross examination Ms. Sands stated that
she and Appellant did not engage in sex during this stop.
The next day, July 24, 2001, Appellant drove to
a Chevron gas station in Hannibal where Ms. Sands testified he again used
her credit card without her permission. Ms. Sand's said that while Appellant
was removing the credit card from her purse he found a picture of one of
her male friends. Ms. Sands testified that this discovery caused Appellant
to question her about the type of relationship she had with the man; during
the questioning Ms. Sands said Appellant hit her repeatedly on the arm, leg
and head. After completing the gas purchase, Appellant drove southward from
Hannibal. He next stopped at a rest area where he allowed Ms. Sands to call
her grandmother. Ms. Sands testified that during this phone call she asked, how
my Aunt Roxie was doing. and that this statement was a signal she had
developed with the grandmother as a way to let the grandmother know Ms. Sands was in trouble and needed help. (See
footnote 8) Ms. Sands explained that she could not
speak candidly with her grandmother during the phone call because Appellant
never left her side; moreover, she was not sure where she was in order
to have her grandmother send help. After the phone call, Ms. Sands said
she asked to use the restroom in hopes of finding a way to escape from
Appellant, but she found no alternative exits. The next stop was also
a rest area at which Appellant called Ms. Sands' grandmother. Ms. Sands
testified that Appellant asked the grandmother for the phone number of
Ms. Sands' sister. Ms. Sands said Appellant wanted to call her sister
to see if she knew how to contact the man Ms. Sands was seeing so that
Appellant could beat him up. Ms. Sands further said that Appellant told
her grandmother at this time that if he could not locate the male friend,
then Ms. Sands would receive the beating for the male companion. (See
footnote 9) According to Ms. Sands, when they returned
to the car Appellant did not immediately resume driving but instead looked
in the car's glove compartment in which he found a knife. Ms. Sands said
that Appellant cut the side of a bottle with the knife to demonstrate
to her the sharpness of the blade. When Appellant arrived at Marietta,
Ohio, Ms. Sands said he attempted to get a cash advance on Ms. Sands'
credit card at an automatic teller machine. Ms. Sands testified that she told Appellant she could not
remember the personal identification number (hereinafter referred to as PIN)
which was necessary to get the cash advance. According to Ms. Sands, as Appellant
believed he could obtain the PIN number by calling the phone number on the
back of the credit card, he drove to a pay phone which he saw at an Exxon
service station to make the call. While Appellant was preoccupied on the
phone, Ms. Sands ran inside the Exxon station. The gas station mechanic testified
that Ms. Sands came running in screaming, crying, and sweat running
off of her. And she ran behind me and . . . said someone had kidnapped her. The
mechanic said that Appellant immediately thereafter came running in the door,
saying by means of explanation that he and Ms. Sands had been fighting all
night and he just wanted to take her home. According to the mechanic, Ms.
Sands became more agitated and resumed screaming and crying and tried to
keep the mechanic between her and Appellant. The mechanic further said that
Appellant ran out of the station and drove off when he heard the mechanic
announce that he was going to call the police. The mechanic followed through
and called the Marietta police, and Appellant was apprehended a few blocks
from the gas station.
Appellant explains events quite differently. Appellant
maintains that while their relationship was somewhat strained, he and Ms.
Sands had an on-going relationship and were seeing each other on a regular
basis primarily because of their child. He essentially argues that Ms. Sands
made up various portions of her story of what occurred on July 23 and 24, 2001, because she had discovered him in bed with another woman. According
to Appellant, the events unfolded in the following way.
Appellant said that he and Ms. Sands had gone to
a tavern in New Martinsville on July 22, 2001, where Appellant played pool
and Ms. Sands spoke to mutual friends about marrying Appellant. According
to Appellant, the couple had a celebration on the twenty- second day of each
month to commemorate the anniversary of their meeting. Appellant further
claims that Ms. Sands spent the night of July 22, 2001, with him at his father's
house in New Martinsville where Appellant was residing. The next morning
Appellant said Ms. Sands returned to her mother's home, from which Ms. Sands'
grandmother picked Ms. Sands up and drove her to work in Wheeling.
Appellant testified that he and Ms. Sands had made
plans for Appellant to pick her up at work at Telespectrum on July 23, 2001,
so that they could continue their anniversary celebration by going to lunch
at Applebee's. (See
footnote 10) Appellant maintains that he arrived earlier
than planned at Telespectrum because he wanted to talk with Ms. Sands about
a conversation he overheard Ms. Sands' mother having after Ms. Sands had
left for work about a court hearing sometime that morning regarding terminating
Appellant's parental rights. (See
footnote 11) He said that he spoke with Ms. Sands about
the court date, but left Telespectrum soon after Ms. Sands' supervisor
requested him to do so. Appellant denied having a gun either inside or
outside Telespectrum. He further explained that he was not aware until
after he was stopped by the Marietta police that a BB gun was in the
footnote 12) Appellant also said if he had a gun in
the waistband of his pants as Ms. Sands claimed, all of the workers outside
on break from their jobs at Telespectrum would have seen the gun because
he did not put on the shirt he was carrying with him that day until he
After leaving Telespectrum, Appellant said that
he walked around Wheeling until near noon at which time he returned to Telespectrum
to meet Ms. Sands and take her to lunch. When he arrived outside Telespectrum,
he visited with employees who were on their break until Ms. Sands appeared.
Appellant said that Ms. Sands' testimony was incorrect in that he was not
waiting outside of the door at Telespectrum and that in actuality he waved
at Ms. Sands when she exited the building and motioned for her to join him.
Appellant also contradicted Ms. Sands' testimony about him forcing her to
immediately leave the area when she emerged from the building, contending
instead that they sat and talked before going to the car. A Telespectrum
employee testified that she saw Appellant and Ms. Sands that day talking outside Telespectrum during the time it took the worker to make
two trips to unload her car. This same witness also said that Appellant walked
in front of Ms. Sands when they left the area; another eyewitness testified
that Appellant crossed the street ahead of and separately from Ms. Sands.
Appellant said Ms. Sands voluntarily accompanied
him to the car and they drove directly to Applebee's where he saw a police
officer who had arrested him previously for violating a protective order.
The policeman testified that he might have been to Applebee's that day and
he did not recall ever seeing Appellant at the restaurant. Appellant related
that after lunch he drove Ms. Sands to a Kaufmann's department store where
she bought him a tee shirt and shorts, all of which Ms. Sands had previously
testified had not occurred on the day in question. From Kaufmann's the couple
drove to Barkcamp, where, according to Appellant's testimony, they changed
into bathing suits and went swimming and sat at a picnic area where Ms. Sands
carved I love Michael into a picnic table. (See
footnote 13) Appellant denied engaging in sex with Ms.
Sands by any means while at Barkcamp that day. After leaving Barkcamp, Appellant
said they stopped at a BP gas station nearby, and Ms. Sands' consented to
placing the gasoline purchase on her credit card. Appellant denied that Ms. Sands tried to exit the car at the gas station or that he used force or
ripped her clothing during that stop.
Appellant testified that the next stops made were
at Senecaville Lake and then Wolf Run. At some point around this time, Appellant
said the couple stopped at a Subway shop where Ms. Sands went in to buy a
sandwich while Appellant walked across the street to a gas station to buy
a can of snuff. Appellant said when he discovered he underestimated the cost
of the snuff, he turned to leave the store and get more money from the car.
In the meantime, Ms. Sands had driven the car from the Subway to the gas
station. After Appellant got the change he needed from inside the car and
he bought the snuff, Appellant said that he got in the car and Ms. Sands
drove to Senecaville Lake where they fed ducks and skipped stones before
traveling on to Wolf Run. Appellant said that Ms. Sands drove up to the ranger
station at Wolf Run where he went inside to find out what facilities were
available at the park and then they left. While it is not clear who was driving
or what route was taken, Appellant said that they arrived in Marietta, Ohio,
where they stopped in a store to look at baby clothes. Appellant said that
the stop was brief because it was near the time for the store to close. Since
it was getting late and he wanted to go home, Appellant said that he began
driving toward New Martinsville, remaining on the Ohio side of the river.
Appellant explained that because he became distracted with Ms. Sands talking
about marriage and he felt dazed from all of the driving, he missed the turnoff
in Hannibal to the bridge which crosses the Ohio River to New Martinsville. When he realized his mistake, Appellant said
he turned the car around and headed back toward Hannibal. Instead of going
to New Martinsville, Appellant said that they spent the night at the wide
spot near Hannibal. Appellant explained that the wide spot was
a location where Ms. Sands and he would arrange to meet and talk when protective
orders were in effect. (See
footnote 14) Contrary to Ms. Sands' testimony, Appellant
said they had consensual sex in the car that night. When they awoke the next
morning, Appellant said he informed Ms. Sands that he was going back to New
Martinsville, but she said that she wanted to return to Marietta to shop
for baby clothes. Appellant said that he finally agreed to go to Marietta
and stopped in a gas station in Hannibal, again using Ms. Sands' credit card.
En route to Marietta, Appellant said that Ms. Sands asked to call her grandmother
so they stopped at a rest area to use a phone there. According to Appellant,
while Ms. Sands was on the phone he went to the rest room and returned to
the car to resume the trip to Marietta. At some point Ms. Sands informed
Appellant that she wanted to call her sister who had just returned from Cleveland.
Appellant said that they stopped at an Ashland gas station so that Ms. Sands
could make the call, during which time Appellant went inside and purchased
a soda. As related by Appellant, Ms. Sands drove from this gas station onward
to Marietta. Before actually arriving in Marietta, Appellant said Ms. Sands
asked him to call her credit card company to see how much credit was remaining
on the card before they stopped to buy baby clothes. Ms. Sands then pulled into an Exxon gas station so that Appellant
could make the call from a pay phone. When Appellant told Ms. Sands the balance
on the card, Appellant said she insisted there had to be a mistake and asked
Appellant to call back and verify the information. Appellant said that while
he was redialing Ms. Sands exited the car and went into the gas station.
Appellant followed Ms. Sands into the station where the mechanic asked him
if there was a current protective order in effect involving the couple. When
Appellant admitted there was an outstanding protective order, Appellant said
the mechanic told him it would be best if Appellant would leave.
Appellant said he left the station and sat in the
car for a few minutes before driving away. Shortly thereafter Appellant was
pulled over by the police and arrested. Ms. Sands was taken to the hospital
in Marietta where she received a full medical examination, during which a
rape kit was completed.
Appellant was indicted in Ohio County in September
2001 on the charges of kidnapping, (See
footnote 15) first degree robbery, (See
footnote 16) two counts of sexual assault in the second
abduction with the intent to defile, (See
footnote 18) violation of a protective order (See
footnote 19) and domestic battery. (See
footnote 20) A jury trial was held in the Ohio County
Circuit Court, beginning on August 19 and concluding on August 22, 2002,
resulting in Appellant's conviction for all charges in the indictment
except abduction with intent to defile. (See
footnote 21) Following sentencing, Appellant filed
a petition with this Court to appeal these convictions, which petition
We pause briefly to note that there may be more
specific standards of review for the diverse principles of law applicable
to the numerous errors Appellant maintains were committed by the court below.
In those instances where further standards are applicable, they will be incorporated
within the discussion of the relevant issue.
To be clear, the venue/jurisdiction concern only
applies to the sexual assault and robbery convictions. The kidnapping, protective
order violation and domestic battery convictions are in no way implicated in this discussion. Appellant's assertion
in this regard is that the trial court committed error by not granting his
motion for acquittal on the second degree sexual assault (See
footnote 22) and robbery (See
footnote 23) charges because the prosecution failed to
present evidence which established that the necessary elements of these offenses
occurred in West Virginia. The state responds by asserting that venue to
prosecute the sexual assault and robbery charges was proper in Ohio County,
West Virginia, because the prosecution's evidence proved that some elements
of the crimes were committed in Ohio County. The determination of whether
the court in the case sub judice had jurisdiction of the second degree sexual
assault and robbery offenses for which Appellant was convicted presents a
question of law which we previously said involves a de novo review.
1. Distinction between Venue and Jurisdiction
The arguments of the parties and the law proffered in support of their respective positions refer interchangeably to venue or jurisdiction. Although at times related, these terms are hardly synonymous. In the context of a criminal case, jurisdiction involves the inherent power of a the court to decide a criminal case, whereas venue relates to the particular county or city in which a court with jurisdiction may hear and determine a case. Syl. Pt. 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963), overruled on other grounds by State ex rel. Sutton v. Spillers, 181 W.Va. 376, 382 S.E.2d 570 (1989). Thus, any court authorized by the [state] Constitution, or a statute enacted pursuant thereto, to hear and determine a case involving a criminal act has jurisdiction thereof. Willis v. O'Brien, 151 W.Va. 628, 630-31, 153 S.E.2d 178, 180 (1967). As long recognized by this Court, [u]nder the Constitution and laws of this state, a crime can be prosecuted and punished only in the state and county where the alleged offense was committed. Syl. Pt. 2, State v. McAllister, 65 W.Va. 97, 63 S.E. 758 (1909). See also State ex rel. Haught v. Donnahoe, 174 W.Va. 27, 32, 321 S.E.2d 677, 682 (1984) (It is fundamental that both federal and state power is limited to its constitutional framework. The organic law embodied within each state constitution runs with the territorial jurisdiction of the state.); Hotzel v. Simmons, 45 N.W.2d 683 (Wis. 1951) (without jurisdiction, criminal proceedings are a nullity).
Appellant's basic contention is that West Virginia
has no authority or power to prosecute or punish the offenses of robbery
and sexual assault in this case because all of the elements of the offenses
occurred, if at all, in the state of Ohio. This claim raises a territorial
challenge to the jurisdiction of any court in West Virginia hearing
and deciding the case rather than a venue-based objection regarding which West
Virginia court in what particular locality within the state should handle
the matter. Even if jurisdiction was not artfully defined as an issue on
appeal, [l]ack of jurisdiction may be raised for the first time in
this court, when it appears on the face of the bill and proceedings, and
it may be taken notice of by this court on its own motion. Syl. Pt.
3, Charleston Apartments Corp. v. Appalachian Elec. Power Co., 118 W.Va. 694, 192 S.E. 294 (1937). See
also State v. McLane, 128 W.Va. 774, 776, 38 S.E.2d 343, 344 (1946)
(This Court may take congnizance of lack of jurisdiction when the question
fairly arises on the record.). As revealed in later discussion, issues
of jurisdiction appear readily from the record.
To support his claim that any trial against him
for these offenses may only be had in Ohio, Appellant points to Rule 18 of
the West Virginia Rules of Criminal Procedure (See
footnote 24) and cases which turn on or reference Article
III, section 14 of the West Virginia Constitution. This portion of our state
constitution in relevant part states: Trials of crimes, and misdemeanors,
unless herein otherwise provided, shall be by a jury of twelve men, public,
without unreasonable delay, and in the county where the alleged offence was
committed, unless upon petition of the accused, and for good cause shown,
it is removed to some other county. Id.
The jurisdictional as well as venue implications of this constitutional provision were recognized early in the jurisprudence of this state in the case of Ex parte McNeeley, 36 W.Va. 84, 14 S.E. 436 (1892). Under the facts of McNeeley, a man from Logan County, (See footnote 25) West Virginia was murdered in the river that forms the Kentucky/West Virginia border, with the shot being fired in Kentucky and the man actually dying in West Virginia where charges were brought. The murder conviction was appealed on the claim that the statute (See footnote 26) upon which the conviction was based violated Article III, section 14 of the West Virginia Constitution. Speaking to the meaning of Article III, section 14, this Court in McNeeley observed:
It may be said with some plausibility that the constitutional provision applies only where both blow and death occur within the State, and only selects what county shall hold the trial; and that it does not apply where part of the offense is outside the State. But I regard it a question of jurisdiction arising under the constitution; and that nowhere in the State can trial be had except in that county where the offence is committed, and if not enough of the act occurred in the county of death to enable us to say that the offence was committed there, then it has no jurisdiction, nor has any county of the State; for I construe the clause as meant to be co-extensive with all criminal acts justiciable under the power of the State.
36 W.Va. at 94, 14 S.E. at 439.
Although expressing reservation with the statute's
departure from common law principles fixing the sole location of trials in
murder cases at the place where the fatal wound was inflicted, (See
footnote 27) the McNeeley court upheld the constitutionality
of the murder statute. In reaching the conclusion in McNeeley, this
Court recognized and deferred to the Legislature's authority to define the
elements of a crime and then found that Article III, section 14 of the state
constitution does not serve as a bar to this state enforcing such laws through
its court system, even when some of the elements constituting the crime were
committed in another state, as long as some significant element of the offense
was committed within West Virginia. Cf. State v. Lowe, 21 W.Va. 782
(1883) (finding that a statute extending jurisdiction 100 yards beyond the
county where any element of crime committed violated West Virginia Constitution
Article III, §14); State v. McAllister, 65 W.Va. 97, 63 S.E. 758
(1909) (setting aside conviction for robbery finding no element of common law
robbery offense committed in West Virginia); State v. Dignan, 114 W.Va.
275, 278, 171 S.E. 527, 528 (1933) (observing that [t]he crime itself
or some act or element entering into it must actually have taken place in the
county where venue is laid and the trial had. It is true that certain crimes[ ] may take place and be committed in more than one
locality, in which case venue may be laid in all or any one of such places.).
The question McNeeley leaves for us to answer in the case before us is: What constitutes how much of an act which must occur in West Virginia for this state to have territorial jurisdiction, that is, to assert its sovereign authority to hear and decide a criminal charge under the state's penal laws? The lower court addressed this question, although using a somewhat different phraseology. As a preface to denying Appellant's motion for acquittal based on the territorial challenge which was raised at the close of the state's case in chief, the lower court said: So the question is, as a practical matter, where is this case to be tried in a sense of fairness to everybody? The lower court explained its reasoning for denying the motion as follows:
[T]here is a certain, I think, logic to taking the initial act, which is grounded in force and threats and intimidation, and then follow that through and, insofar as the evidence most favorable to the State at this point, you have nothing more than acts that build upon that threat and force and intimidation; robbery in the first degree and sexual assault in the second degree.
I could see an argument that conceivably could be made, that if you had an act outside the State of West Virginia that was charged, that has absolutely nothing to do with the force and threat or intimidation, that an argument could be made that venue would not be proper on that offense in Ohio County, West Virginia.
But _ even though we don't have _ there's not a lot of good law in West Virginia to guide us, it just _ I think fundamental fairness on both sides and common sense would require a finding, that when an offense begins in Ohio County, West Virginia that is related to an act of violence or force, anything that flows from that, no matter where it would be, the venue would be proper in West Virginia _ Ohio County, West Virginia.
The state maintains that support for the lower court's conclusion is found in the United States Supreme Court case of United States v. Rodriguez-Moreno, 526 U.S. 275 (1999). The question in Rodriguez-Moreno actually turned on the provisions of a federal venue statute (See footnote 28) and involved whether a district court in New Jersey had authority to convict a person for carrying a firearm while committing an act of violence in New Jersey when the firearm was used only in the state of Maryland. The Supreme Court examined the following language of the federal statute relied upon by the government to bring the charge in the New Jersey court:
Whoever, during and in relation to any crime of violence . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence . . . be sentenced to imprisonment for five years . . . .
Id. at 279, quoting 18 U.S.C. § 924(c)(1)).
The violent predicate offense in Rodriguez- Moreno happened to be kidnapping. The high court found that closer examination of the nature of the predicate offense was essential in order to give meaning to the statutory phase during and in relation to. Looking to the nature of kidnapping, the Supreme Court found that it was a continuing offense which does not end until the victim is free. The Supreme Court reasoned,
Congress proscribed both the use of the firearm and the commission of acts that constitute a violent crime. It does not matter that respondent used the .357 magnum revolver, as the Government concedes, only in Maryland because he did so during and in relation to a kidnaping that was begun in Texas and continued in New York, New Jersey, and Maryland.
526 U.S. at 281. In other words, the Supreme Court found that within the ambit of the federal statute in question the prosecution of the firearm offense could proceed in any location where prosecution for the continuing and violent offense of kidnapping might be brought.
Although the lower court concluded otherwise, the
same bootstrap technique is clearly not available in the present case to
somehow tie the crimes of sexual assault in the second degree and robbery
to the kidnapping offense in order to legitimize this state's assertion of
jurisdiction. Nevertheless, we find the Supreme Court's examination of the
nature of the offense as a continuing series of events somewhat relevant
to our analysis and resolution of the jurisdictional issue.
2. Continuing Crimes
As we observed earlier in this opinion, under the general premise of the common law a crime is committed in just one place so only the government of that single place would have jurisdiction to prosecute and punish the crime. Exceptions were made at common law to this single situs rule for offenses characterized as continuing such as kidnapping and larceny. 4 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure §16.1(d) (2d ed., West 1999). A continuing offense is a crime considered as transitory, on-going, or capable of repetition or continuation and as such is considered committed, and subject to prosecution, at any place where the crime was initiated, continued or completed. Id.
Several states (See footnote 29) have found sexual assault in the second degree, commonly referred to as forcible rape, to be a continuing offense in circumstances such as the case before us. On a whole these courts have concluded that when the elements of an offense occur sequentially, are repeated or continue over a limited span of time or constitute a single chain of events, then the offense is a continuing crime by which venue lies both in the place where the defendant caused the victim to be fearful through use of force or threats of force and the place where the defendant engaged in the prohibited sexual act. See Spoonmore v. State, 411 N.E.2d 146 (Ind. App. 1980) (single chain of events establishing a basis for jurisdiction where any act occurred); State v. Redford, 750 P.2d 1013 (Kan. 1988) (series of events which are material elements forming single crime); Moore v. Commonwealth, 523 S.W.2d 635 (Ky. 1975) (initial abduction a sequential part of carrying out the purpose of having carnal knowledge of victim); People v. Slifco, 413 N.W.2d 102 (Mich. 1987) (crime began where force or coercion employed even though sexual penetration occurred in another location); McKorkle v. State, 305 So. 2d 361 (Miss. 1974) (threat of physical violence is an element of the offense which continued until the rape was committed; State v. Gallup, 520 S.W.2d 619 (Mo. App. 1975) (rape continues until all elements of the crime are completed); People v. Burgess, 484 N.Y.S. 2d 58 (N.Y. 1985) (force as an element of the crime continued uninterrupted through the rapes and until the victims were released). Additionally, at least one state has applied similar reasoning in finding robbery to be a continuing offense when elements of the crime are committed in more than one jurisdiction. People v. Kalwa, 714 N.E.2d 1023 (Ill. 1999) (robbery takes on the nature of a continuing offense when the elements of the crime occur sequentially).
West Virginia Code § 61-11-12 (1969) (Repl. Vol. 2000), which addresses where a crime committed in more than one county within the state may be tried, impliedly establishes a much broader category of continuing offenses than those identified as such at common law. This statute provides:
an offense is committed partly in one county and partly in one or more other
counties within this State, it may be alleged that the offense was committed
and the accused may be tried in any one county in which any substantial element
of the offense occurred.
Although this multi-venue statute is limited by its terms to actions occurring within the state, we find its underlying theory compatible with resolving jurisdictional questions arising from situations where substantial elements of an offense are committed partly within West Virginia and partly within another state or states. A significant reason for reaching this conclusion is perhaps the most obvious: to provide no incentive for criminals to elude prosecution and punishment for violating the penal laws of this state. As United States Supreme Court Justice Holmes stated in Strassheim v. Daily, 221 U.S. 280 (1911), a case involving extradition:
Acts done outside a jurisdiction, but intended to produce
and producing detrimental effects within it, justify a State in punishing the
cause of the harm as if he had been present at the effect, if the State should
succeed in getting . . . [the accused] within its power. . . . [T]he criminal
need not do within the State every act necessary to complete the crime. If he
does there an overt act which is and is intended to be a material step toward
accomplishing the crime, and then absents himself from the State and does the
rest elsewhere, he becomes a fugitive from justice. . . .
Id. at 285.
Accordingly we hold that the offenses of sexual assault
in the second degree and robbery may constitute continuing offenses for purposes
of criminal prosecution within the territorial jurisdiction of the state of
West Virginia. In order to be considered a continuing offense, the facts must demonstrate that at least one substantial or material
element of the alleged sexual assault or robbery occurred within this state
as part of a sequential chain of events. Therefore, on this basis we uphold
the lower court's denial of the motion to acquit because at that stage in
the proceedings the lower court was required to view the evidence in the
light most favorable to the prosecution. Syl. Pt. 1, State v. Fischer,
158 W.Va. 72, 211 S.E.2d 666 (1974) ('Upon motion to direct a verdict
for the defendant, the evidence is to be viewed in light most favorable to
prosecution. It is not necessary in appraising its sufficiency that the trial
court or reviewing court be convinced beyond a reasonable doubt of the guilt
of the defendant; the question is whether there is substantial evidence upon
which a jury might justifiably find the defendant guilty beyond a reasonable
doubt.' State v. West, 153 W.Va. 325 [168 S.E.2d 716] (1969).).
3. Role of Jury
When subsequently submitted to the jury, the lower court's relevant instruction treated the matter as one of venue, adhering to the standards set forth in syllabus point five of State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979) (The State in a criminal case may prove the venue of the crime by a preponderance of the evidence, and is not required to prove the same beyond a reasonable doubt.). The court's instruction stated:
You are instructed that venue is a jurisdictional element of proof in a criminal trial. The State is permitted to prove venue by circumstantial evidence. The State need only prove venue by a preponderance of the evidence and is not required to prove venue beyond a reasonable doubt.
A trial may be held and venue may be established in any jurisdiction in which a substantial element of the offense occurred.
Since we have defined the issue as territorial jurisdiction rather than venue, in order to determine the adequacy of the lower court's instruction we now must consider whether the judge or jury should ultimately resolve the question of territorial jurisdiction and by what measure of proof.
Jurisdiction is generally a question of law for
the court to decide. However, our earlier finding in this opinion _ that
a challenge raised to territorial jurisdiction under these circumstances
requires a finding that at least one substantial element of the crime has
been committed in West Virginia _ presents a question of fact which is
traditionally left to the jury to decide. Syl. Pt. 2, State v. Bailey,
151 W.Va. 796, 155 S.E.2d 850 (1967) (The jury is the trier of the
facts and in performing that duty it is the sole judge as to the weight
of the evidence and the credibility of the witnesses.). We see no
reason to depart from this practice when conflicting evidence is presented
regarding where an element of the crime is committed so as to determine
whether the state has the power to bring the criminal proceeding. When
faced with this same question, the Supreme Court of Arizona concluded that
territorial jurisdiction is a decision left for the jury when the facts
are intertwined with the merits of the case [making] the jurisdictional
and substantive issues . . . difficult to resolve separately. State v. Willoughby, 892 P.2d 1319,
1325 (Ariz. 1995). A goodly number of state courts have likewise held that
resolution of disputed jurisdictional facts is a matter within the province
of the jury. See e.g. State v. Cullen, 695 P.2d 750, 751 (Colo.App.
1984); Sheeran v. State, 526 A.2d 886, 890 (Del. 1987); Johnson
v. State, 465 So.2d 499, 504 (Fla. 1985); Conrad v. State, 317
N.E.2d 789, 792 (Ind. 1974); State v. Liggins, 524 N.W.2d 181, 184
(Iowa 1994); State v. Baldwin, 305 A.2d 555 (Me. 1973); State
v. Darroch, 287 S.E.2d 856, 866 (N.C. 1982); People v. McLaughlin,
606 N.E.2d 1357, 1359-60 (N.Y. 1992); Commonwealth v. Bighum, 307
A.2d 255, 258 (Pa. 1973). Significantly few states view the adequacy of
proof under these circumstances as an issue which the court solely resolves. See
State v. Beverly, 618 A.2d 1335, 1339 (Conn. 1993) (collecting four
cases). Consequently, the lower court properly submitted the issue to the
jury. Nevertheless, we are not convinced that territorial jurisdiction,
which involves determining where an element of the crime occurred, should
be decided by a mere preponderance of the evidence.
A considerable number of states require jurisdictional facts must be proven beyond a reasonable doubt. (See footnote 30) The predominant reasons for that conclusion has been summarized by one recognized authority in the following way:
Use of the beyond a reasonable doubt standard [in resolving
disputed jurisdictional facts] minimizes the possibility that a defendant will
be tried in one state for a crime actually committed elsewhere. Moreover, it
makes it more likely that other states will afford full faith and credit to decisions
regarding criminal jurisdiction, even though they are not constitutionally required
to do so. There is also the practical consideration that using a lesser standard
for a portion of the prosecution's case and the beyond a reasonable doubt standard
for the rest would doubtless create confusion in the minds of the jurors.
1 Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 2.7(b) at 163 (West 1986) (footnotes omitted). The profound intertwining of the jurisdictional facts with the merits of the case in these instances leads us to conclude that proof of the existence of territorial jurisdiction is the same as that required to prove the elements of the crime _ proof beyond a reasonable doubt. Syl. Pt. 4, State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976), overruled on other grounds by Jones v. Warden, West Virginia Penitentiary, 161 W.Va. 168, 241 S.E.2d 914 (1978) (In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged. . . .).
In consideration of the foregoing we conclude
that the judge and jury share responsibility for the ultimate determination
of territorial jurisdiction in a criminal case involving controverted jurisdictional
facts. The court must first determine as a matter of law whether the elemental
act or consequence at the heart of the disputed evidence would be sufficient
to establish jurisdiction if it occurred within the state. If sufficiency
is found by the court, the matter is submitted to the jury for determination
of whether the evidence demonstrates beyond a reasonable doubt that the
act or consequence at issue actually occurred within the borders of the
footnote 31) Because territorial jurisdiction determines
the power of the state to proceed in prosecution of its penal laws and
its absence renders a verdict void, (See
footnote 32) the jury should be instructed that if
the state has not carried its burden on the disputed jurisdictional
evidence then a verdict of not guilty should be returned.
The state argues that the evidence in this case
conclusively proved that West Virginia had territorial jurisdiction of
the offenses of sexual assault and robbery and the convictions should be
upheld. The state specifically contends that forcible compulsion, as a
material element of sexual assault, and the threat of deadly force, (See
footnote 33) as a material element of robbery, occurred
in West Virginia when the gun was displayed to the victim and she was kidnapped.
We fail to find from our review of the evidence that only one possible
conclusion can be reached.
While the evidence does establish that Ms. Sands
was kidnapped from West Virginia and transported to Ohio, it is not clear
that the abduction occurred as a result of force or threat rather
than fraud or enticement. W.Va. Code § 61-2-14(a). For
example, evidence that the historic relationship of the parties included
violence and that a BB gun resembling a conventional handgun was found in the car could lead
a jury to conclude that force was used to abduct Ms. Sands. However, the
evidence that previous lunch plans had been made and that Appellant wanted
to talk with Ms. Sands about court action being taken regarding the couple's
child might have been viewed by the jury as a means by which Ms. Sands
was enticed to leave the state with Appellant. A jury could also have found
that tensions escalated and the fear necessary to return guilty verdicts
for the rape and robbery crimes developed in Ohio during the five hours
the couple were driving after the abduction from West Virginia and the
first stop in Ohio. Based upon our holding regarding disputed evidence,
resolution of whether the element of fear or other essential element of
second degree sexual assault or second degree robbery occurred in West
Virginia was for the jury to decide beyond a reasonable doubt. The lower
court failed to take into account the dispute in the evidence and thus
committed an error of law by not instructing the jury of its responsibility
to determine, beyond a reasonable doubt, whether any element of the crimes
of sexual assault and robbery occurred in West Virginia so as to establish
territorial jurisdiction. Accordingly, the sexual assault and robbery convictions
must be set aside.
B. Removal of Juror
Appellant next assigns error to the lower court's refusal to grant a mistrial when it was learned during the course of the trial that one of the jurors was the daughter of a woman who had been a secretary in the prosecutor's office and was working in the circuit clerk's office at the time of trial.
In West Virginia Human Rights Commission v. Tenpin Lounge, 158 W.Va. 349, 211 S.E.2d 349 (1975), we addressed how such situations are properly examined:
Just as the trial court has discretion over voir dire examination, so should it have discretion on the question of whether a new trial should be granted because of false answers given by a prospective juror on such examination. In the exercise of its discretion in the latter instance a trial court should, when requested, permit interrogation of the prospective juror to determine the truth or falsity of such answers and the relevancy thereof to the case under consideration.
Id. at 358, 211 S.E.2d at 354-55. The state also points us to McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), in which the United State Supreme Court set forth a particularized test for determining whether a new trial is required when there is juror deceit during voir dire. This test requires the proponent of the new trial to:
first demonstrate that a juror failed to answer honestly
a material question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for cause. The motives
for concealing information may vary, but only those reasons that affect a juror's
impartiality can truly be said to affect the fairness of a trial.
Id. at 556.
In the present case, the trial court expressed great
concern with the discovery and proceeded to conduct the necessary hearing sua
sponte. The hearing did not reveal any intent on the part of the juror to withhold
information regarding her mother's employment; the record demonstrates that the
juror simply misunderstood the voir dire question. Appellant's counsel did not
question the juror during the hearing and did not demonstrate how a correct response
by the juror would have provided a valid basis to sustain a challenge for cause
or show that the juror was actually biased. In essence, there was no showing
of prejudice or other basis for the lower court to find that injustice would
result from the juror's continued participation on the panel. We find the trial
court properly employed its discretion by refusing to grant a mistrial.
C. Exclusion of Expert Witness on Battered Woman's Syndrome
Appellant asserts that the trial court's failure to allow introduction of expert testimony to rebut the state's evidence about BWS is reversible error warranting that the verdict be set aside and a new trial granted. The hurdle Appellant must overcome to establish such error is fairly high as [t]he admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless clearly wrong. Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991).
The trial court made pre-trial rulings about the use
of BWS experts, concluding that unless the state offered evidence regarding BWS
then no expert testimony about the issue would be permitted. The state reserved
the right to call such an expert, but elected not to do so during trial. Appellant's
claim is that even though the state did not call the expert at trial, the state
elicited testimony which used terms and concepts commonly associated with BWS
which should have served to open the door for Appellant's expert
to testify. The record shows that no testimony or other evidence was introduced
during the trial which established a connection between the questioned terms
or concepts and BWS, so we fail to see how the testimony was relevant and would
serve to assist the trier of fact to understand the evidence. W.Va.
R. of Evid. 702. See Gilman v. Choi, 185 W.Va. 177, 406 S.E.2d 200 (1990)
(Rule 702 of the West Virginia Rules of Evidence is concerned primarily with
the relevancy of expert testimony). The trial court wisely exercised discretion
by excluding such testimony, which more likely would have confused rather than
enlightened the jury.
D. Repetition of Victim's Statements as Impermissible Hearsay
Next Appellant maintains that the trial court incorrectly allowed the state's witnesses to repeat the victim's statement resulting in bias and prejudice. Our standard of review regarding a circuit court's decision to admit or exclude evidence was summarized in State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), in the following way: [M]ost rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard . . . . [A]n appellate court reviews de novo the legal analysis underlying a trial court's decision. Id. at 680, 461 S.E.2d at 186.
As to the hearsay concerns Appellant raises, we held in syllabus point one of State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990):
Generally, out-of-court statements
made by someone other than the declarant while testifying are not admissible
unless: 1) the statement is not being offered for the truth of the matter asserted,
but for some other purpose such as motive, intent, state-of-mind, identification
or reasonableness of the party's action; 2) the statement is not hearsay under
the rules; or 3) the statement is hearsay but falls within an exception provided
for in the rules.
Before applying these standards, we initially observe that Appellant's claim involves the testimony of seven of the state's witnesses. We further note that Appellant failed to object when three of the witnesses testified. Errors assigned for the first time on appeal will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court had objection been raised there. Syl. Pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974). The questioned testimony of one of the law enforcement witnesses did not involve the statement of the victim but rather that of the victim's grandmother when she called the Wheeling Police Department to report the kidnapping. As the officer simply testified to what he heard during that conversation and what he did as a result of what he heard, we find no hearsay let alone error. The record also shows that the trial court allowed the victim's statement to be read into the record by the detective who took the statement but only after Appellant during cross-examination had the detective read from the statement. Whether or not testimony involves impermissible hearsay, a party will not be permitted to complain of error in the admission of evidence which he offered or elicited[.] Syl. pt. 2, in part, State v. Bowman, 155 W.Va. 562, 184 S.E.2d 314 (1971). As a result, the hearsay challenge boils down to two state witnesses: the gas station mechanic in Marietta, Ohio, who called the police, and one detective with the Wheeling Police Department.
The lower court allowed the admission of the
hearsay testimony of the gas station mechanic under the excited utterance
exception to the rule against the admission of hearsay, (See
footnote 34) and allowed the testimony of the Wheeling
detective to be admitted because the victim's out-of-court statement was
not offered for the truth of the matter asserted, but rather to explain
the actions taken by the officer after the statement was made to him. We
find no abuse of discretion as to admission of this evidence. The gas station
mechanic's testimony, prior to relating any hearsay statements, described
the victim when she entered the gas station as hysterical, screaming.
She was crying. Sweat was running off her where you could just tell she
was upset, and she just _ like I said, hysterical. This was a sufficient
foundation from which the trial court could conclude that the out-of-court
statement of the victim which the mechanic thereafter related was an excited utterance. As to the officer's
testimony, the victim's statements involving her rape helped explain why
the detective went to Barkcamp and collected evidence there. Moreover,
the record shows that the jury was instructed as to the limited purpose
of the recitation of the out-of-court statements.
E. Evidence of Other Crimes, Wrongs or Acts
The trial court's decision to allow evidence involving prior bad acts of Appellant is also challenged in this appeal. W.Va. Rules of Evidence 404(b). (See footnote 35) Appellant claims particularly that testimony received at trial about events allegedly occurring in April, May and June of 2001was not relevant to the charges before the jury regarding acts committed in July 2001, thus making the testimony more prejudicial than probative. The state counters this argument by asserting that the trial court properly determined that the questioned evidence was res gestae, making its admission proper.
The trial court characterized the challenged evidence [a]s part of the fabric of the underlying charge, outside the customary Rule 404(b) procedure and analysis, making it unnecessary to conduct an in camera hearing as set forth in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). The trial court's actual ruling is as follows:
THE COURT: I'm going to hold that we do not need a McGinnis hearing , and all those [incidents] are admissible (See footnote 36) . . . . because they basically are all part of the overall relationship between this gentleman and the defendant (sic).
Our first consideration thus becomes whether the trial court properly determined that the evidence was res gestae. Events, declarations and circumstances which are near in time, causally connected with, and illustrative of transactions being investigated are generally considered res gestae and admissible at trial. Syl. Pt. 3, State v. Ferguson, 165 W.Va. 529, 270 S.E.2d 166 (1980), overruled on other grounds by State v. Kopa 173 W.Va. 43, 311 S.E.2d 412 (1983). However, [o]ther criminal act evidence admissible as part of the res gestae or same transaction introduced for the purpose of explaining the crime charged must be confined to that which is reasonably necessary to accomplish such purpose. Syl. Pt. 1, State v. Spicer, 162 W.Va. 127, 245 S.E.2d 922 (1978). Additionally, we concluded in State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996), that historical evidence of uncharged prior acts which is inextricably intertwined with the charged crime is admissible over a Rule 403 objection. 196 W.Va. at 313, 470 S.E.2d at 632. In support of this conclusion we observed:
In determining whether the admissibility of evidence of other bad acts is governed by Rule 404(b), we first must determine if the evidence is intrinsic or extrinsic. See United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990): 'Other act' evidence is 'intrinsic' when the evidence of the other act and the evidence of the crime charged are 'inextricably intertwined' or both acts are part of a 'single criminal episode' or the other acts were 'necessary preliminaries' to the crime charged. (Citations omitted). If the proffer fits in to the intrinsic category, evidence of other crimes should not be suppressed when those facts come in as res gestae _ as part and parcel of the proof charged in the indictment. See United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980) (stating evidence is admissible when it provides the context of the crime, is necessary to a 'full presentation' of the case, or is . . . appropriate in order 'to complete the story of the crime on trial by proving its immediate context or the res gestae'). (Citations omitted). . . . [E]vidence admissible for one of the purposes specified in Rule 404(b) and res gestae not always is separated by a bright line. See United States v. Cook, 745 F.2d 1311, 1317-18 (10th Cir. 1984), cert. denied, 469 U.S. 1220, 105 S.Ct. 1205, 84 L.Ed.2d 347 (1985).
Larock, 196 W.Va. at 312 n. 29, 470 S.E.2d at 631 n. 29.
The evidence contested by Appellant is the testimony
of the victim, the victim's grandmother and two Wheeling law enforcement officers.
The victim's testimony related various incidents occurring in the three months
preceding the events occurring on July 23 and 24, 2001, for which Appellant was
indicted. These incidents were used to demonstrate Appellant's pattern of abusive
and controlling behavior as a means of defining the turbulent nature of the relationship
the victim had with Appellant after she attempted to break off the relationship
with Appellant in late April 2001. The testimony of the grandmother and law enforcement
officers related the events of June 27, 2001, which bore a striking similarity
to the July episode and resulted in the arrest of Appellant for violation of
a domestic violence protective order. After carefully reviewing the record, we
cannot say that the trial court abused its discretion in finding that the prior
acts constituted intrinsic evidence, not subject to Rule 404(b) analysis. While
the acts were not part of a single criminal episode or necessary
preliminaries to the charged offenses, it is difficult to conclude that
the evidence was not necessary to complete the story of the crimes on trial or
otherwise provide context to the crimes charged. Id. This is especially
true in light of the domestic violence overlay to the pattern of behavior. Even
if we were to conclude that the trial court erred in finding the prior act evidence
to be res gestae, we believe the evidence would still be admissible under Rule
404(b). The incidents from Appellant's recent past would have satisfied a number
of acceptable purposes set forth in Rule 404(b), including proving motive, opportunity
and knowledge. In either case, it seems doubtful that this case could have been appropriately presented without such background information. Finding that
the lower court did not act in an arbitrary or irrational manner or otherwise
abuse its discretion, we find no error.
Our review of the remaining errors _ allowing
a nurse to testify as an expert regarding the victim's injuries, providing
no remedy for an inadequate police investigation, and failing to instruct
the jury to disregard prejudicial statements of the prosecutor during closing
argument _ results in our finding all to be without merit. (See
As this statutory provision does not fully define the offense of robbery, we
adhere to the common law definition of the crime: The felonious taking
of money or goods of value from the person of another or in his presence, against
his will, by force or putting him in fear. State v. Young, 134 W.Va.
771, 779-80, 61 S.E.2d 734, 739 (1950) (citations omitted).
[i]f a person be stricken or poisoned out of this
state, and die by reason thereof within this state, the offender shall be
as guilty, and may be prosecuted and punished [in West Virginia], as if the
mortal stroke had been given, or poison administered, in the county in which
the person so stricken or poisoned may so die.
Although slightly modified, this statute now appears in the West Virginia Code at § 61-2-6.
Other crimes, wrongs or acts. _ Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.