| Mark Hobbs, Esq.|
Chapmanville, West Virginia
Attorney for the Appellant
| Darrell V. McGraw, Jr., Esq.
R. Christopher Smith, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. 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. Syl. pt. 2, State v. McGinnis
,193 W. Va. 147, 455 S.E.2d
2. In the exercise of discretion to admit or exclude evidence of collateral
crimes and charges, the overriding considerations for the trial court are to scrupulously
protect the accused in his right to a fair trial while adequately preserving the right of the State
to prove evidence which is relevant and legally connected with the charge for which the
accused is being tried. Syl. pt. 16, State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974).
This case is before this Court upon the appeal of David Nelson from his
convictions in the Circuit Court of Mingo County, West Virginia, of six felony offenses
relating to the death of Wanda Lesher. The convictions are: murder of the first degree,
kidnapping, sexual assault in the first degree and three counts of conspiracy relating to those
offenses. By order entered on May 20, 2005, appellant Nelson was sentenced to two
penitentiary terms of life without mercy upon the murder and kidnapping convictions, 15 to
35 years upon the sexual assault conviction and three terms of 1 to 5 years upon the
conspiracy convictions. The Circuit Court directed that the sentences be served
The facts surrounding Wanda Lesher's death are egregious. Of the four
individuals with whom Nelson allegedly participated, three have been convicted of various
felonies in the case including murder of the first and second degree, kidnapping and sexual
assault in the first degree. At the time of Nelson's trial, the fourth individual was expecting
to enter a plea to murder of the first degree with the hope of receiving a sentence of life with
Appellant Nelson relied upon the defense of alibi and testified at trial. On
cross-examination, however, he was challenged with acts of misconduct he allegedly
committed in the past. Nelson contends, inter alia, that he was denied a fair trial because
those acts constituted matters covered by Rule 404(b) of the West Virginia Rules of
Evidence, as to which the Circuit Court took none of the required cautionary measures. The
State responds by stating that, inasmuch as Nelson placed his character in issue at trial, the
Circuit Court acted within its discretion in allowing the cross-examination as rebuttal.
This Court has devoted considerable time to examining the appellant's petition,
the record of the proceedings below and the briefs and argument of counsel. This Court
concludes that the alleged acts of past misconduct raised by the state during the cross-
examination were unverified, were inflammatory and were subject to the requirements of
Rule 404(b). Nor in the context of rebuttal upon the issue of character were the alleged acts
admissible. Consequently, Nelson was denied a fair trial. The convictions, as well as the
May 20, 2005, sentencing order, are set aside, and this case is remanded to the Circuit Court
for a new trial.
On the evening of August 30, 2002, Wanda Lesher exited a tavern and drove
away accompanied by Aaron Nelson and Alfred Dingess, Jr. Soon after, she was told to
drive up a mountain road to Canterbury Cemetery. Shortly after their arrival, Clinty Nelson
and Zandell Bryant appeared at the Cemetery. (See footnote 1)
According to the State, appellant David
Nelson was also present, and each of the five men sexually assaulted Wanda Lesher in spite
of her pleas to be allowed to return home to her children.
Following the sexual assault, Aaron Nelson took a two-by-four board from a
nearby picnic table, and each of the men repeatedly struck and beat Wanda Lesher, fatally
injuring her by way of skull fractures and broken facial, jaw and rib bones. She was then
allegedly transported by appellant Nelson in his pick-up truck to Messenger Hollow, also in
Mingo County, where, barely alive, the men placed her in a pond. Noticing that her body
was still visible in the water, the men removed her from the pond and constructed a shallow
grave where she was then covered with sticks and branches. When the body of Wanda
Lesher was ultimately recovered by the State Police, it was determined that, after she was
removed from the pond, she had been strangled with a shoe string and her hands tied behind
her back. The State Medical Examiner testified at trial that the cause of Wanda Lesher's
death was multiple blunt force injuries to the head, back and torso with drowning and
strangulation as contributing factors. She most likely died in the early morning hours of
August 31, 2002.
In addition to the recovery of the body at Messenger Hollow, the two-by-four
and some of Wanda's jewelry were found at Canterbury Cemetery. Her car, destroyed by
fire, was located in Logan County.
In September 2002, Alfred Dingess, Jr., gave the State Police a statement
implicating himself and Aaron Nelson in the crimes committed against Wanda Lesher.
Fourteen months later, Zandell Bryant gave a statement implicating himself as well as Clinty
Nelson and appellant David Nelson. Thereafter, Alfred Dingess, Jr., spoke with the State
Police again, this time including appellant Nelson as one of the assailants. On November 14,
2003, appellant Nelson gave a statement to Trooper B. L. Keefer of the State Police in which
he stated that, at the time the crimes were committed against Wanda Lesher, he was at work
at Classic Conveyors in Chapmanville, West Virginia. (See footnote 2)
Aaron Nelson, Clinty Nelson and Zandell Bryant were convicted of a number
of felony offenses relating to the death of Wanda Lesher, including murder of the first and
second degree, kidnapping and sexual assault in the first degree. (See footnote 3)
Those convictions were
obtained by the State prior to the trial of appellant David Nelson. At the time of Nelson's
trial, Alfred Dingess, Jr., was expecting to enter a plea to murder of the first degree with the
hope of receiving a sentence of life with mercy.
In the January 2005 term, a separate indictment was returned by a Mingo
County grand jury against appellant Nelson charging him, in six counts, with crimes relating
to the death of Wanda Lesher including: murder of the first degree, kidnapping, sexual
assault in the first degree and three counts of conspiracy with regard to those offenses. (See footnote 4)
The appellant's trial began in April 2005. Alfred Dingess, Jr., and Zandell
Bryant, called by the State, testified that appellant Nelson, as well as the other men, sexually
assaulted Wanda Lesher and participated in killing her. They also indicated that, after the
beating at the Cemetery, her body was placed in a pick-up truck the appellant had driven to
the scene. No physical evidence was submitted directly connecting the appellant to the
The appellant's wife, Lynetta Nelson, called by the defense, testified that she
left home on the evening in question, August 30, 2002, to report to work at Logan General
Hospital as a nursing assistant, leaving the appellant at the house with their two daughters,
approximate ages 14 and 5. Lynetta Nelson stated that she spoke with the appellant that
night by telephone and saw him the next morning when she returned home. The oldest
daughter, Keisha, testified that the appellant was home that evening.
Appellant Nelson took the stand, denied ever meeting Wanda Lesher, and
stated that he was at home with his daughters during the period in question. He further
testified that, having lived with Lynetta since 1988, he was a family man and not a person
who would rape or sexually assault women. As more fully discussed below, during cross-
examination the State revealed for the first time to the Circuit Court and defense counsel a
1987 report from a child protective services worker indicating that Shelia Nelson, one of the
appellant's sisters, alleged that, in 1983 or 1984 when she was 13 years old, the appellant
committed acts of sexual abuse or sexual assault against her. (See footnote 5)
The Circuit Court concluded
that, in view of the report, cross-examination concerning the allegations would be permitted
as rebuttal character evidence with regard to the appellant's assertion that he was a family
man who would not engage in sexual offenses against women. As a result, the requirements
pertaining to Rule 404(b) of the West Virginia Rules of Evidence, such as the conducting of
an in camera
hearing concerning the allegations and the giving of a limiting instruction to
the jury, were deemed inapplicable. During the ensuing cross-examination, appellant Nelson
denied any misconduct toward his sister, and the Circuit Court denied defense counsel's
motion for a mistrial.
On April 15, 2005, the jury returned its verdict finding the appellant guilty as
charged in the indictment and declining to recommend mercy upon either the murder or
kidnapping charges. The appellant's post-trial motions were denied, and by order entered
on May 20, 2005, he was sentenced to two penitentiary terms of life without mercy upon the
murder and kidnapping convictions, 15 to 35 years upon the sexual assault conviction and
three terms of 1 to 5 years upon the conspiracy convictions. The sentences were ordered to
be served consecutively. The appellant's petition for appeal was granted by this Court in
Standards of Review
The principal assignment of error before this Court is whether the alleged past
acts of the appellant toward his sister, Shelia Nelson, constituted proper rebuttal evidence by
the State concerning the appellant's character under Rule 404(a)(1) of the West Virginia
Rules of Evidence, or whether the alleged past acts constituted matters covered by Rule
404(b) as to which a number a precautionary measures are required.
With regard to character, Rule 404(a)(1) provides in relevant part that
[e]vidence of a person's character or a trait of character is not admissible, except for
evidence of a pertinent trait of character of the accused offered by the prosecution to rebut
the same. On the other hand, Rule 404(b) states:
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. (See footnote 6)
Consequently, the issue concerning the alleged past acts of appellant Nelson
involves an interpretation by this Court of the West Virginia Rules of Evidence which is a
separate matter from simply determining whether the cross-examination was within the
Circuit Court's discretion. As recognized in State v. Sutphin, 195 W. Va. 551, 466 S.E.2d
402 (1995), a trial court's ruling on the admissibility of testimony is reviewed for an abuse
of discretion, but to the extent the ruling turns on an interpretation of the Rules of Evidence
review is plenary. 195 W. Va. at 560, 466 S.E.2d at 411. State v. McDaniel, 211 W. Va.
9, 12, 560 S.E.2d 484, 487 (2001). Thus, in considering whether the Circuit Court in the
current matter committed error in applying Rule 404(a)(1) rather than the substantially
different Rule 404(b), the standard of review is de novo. (See footnote 7)
Appellant Nelson contends that he was denied a fair trial because his cross-
examination by the State, upon the 1987 report, brought out alleged acts of past sexual
misconduct which should have been subjected to a Rule 404(b) disposition by the Circuit
Court. The precautionary measures to be taken under Rule 404(b) were set forth by this
Court in syllabus point 2 of State v. McGinnis
,193 W. Va. 147, 455 S.E.2d 516 (1994):
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
, 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. (See footnote 8)
Syl. pt. 4, State v. McIntosh
, 207 W. Va. 561, 534 S.E.2d 757 (2000); syl. pt. 4, State v. Scott
206 W. Va. 158, 522 S.E.2d 626 (1999); syl. pt. 2, State v. Williams
, 198 W. Va. 274, 480
S.E.2d 162 (1996). See
, Vol. 1, F. D. Cleckley, Handbook on Evidence for West Virginia
§ 4-5(B)(2) p. 60 (3rd
ed. Cum. Supp. 1999).
In the case to be determined, a review of the State's cross-examination of
appellant Nelson reveals that alleged acts of past sexual misconduct substantially beyond the
scope and reach of character evidence under Rule 404(a)(1) were brought out before the jury.
The cross-examination was not limited to whether the appellant sexually abused or sexually
assaulted his sister, Shelia Nelson, one time when she was 13 years old. In spite of his
denials and objection by defense counsel, the State's cross-examination suggested: (1) that
the appellant sexually abused or assaulted Shelia a number of times, (2) that both he and his
brother Clinty committed some of the acts, (3) that the misconduct continued for an
unspecified period of time because it had occurred since Shelia was 13 years old, (4) that the
appellant abused his other sisters and (5) that the appellant sexually assaulted Shelia just
like Wanda Lesher on August 31, 2002. The cross-examination of the appellant transpired,
in part, as follows:
Q. In fact, you, Clinty Nelson, both sexually
abused your younger sister?
A. No, sir.
Q. Since she was age 13?
Q. You had sex with her a couple of times in
Logan County, didn't you?
A. No, sir, I didn't.
Q. She stayed home[,] you would come in her
room and force her to have sexual intercourse
with you and you did it at least four times?
A. No, sir, I didn't.
Q. You abused your other sisters, too?
A. No, sir, I didn't. * * *
Q. You sexually assaulted your sister just like
Wanda Lesher on August 31, 2002?
A. No, I didn't. (See footnote 9)
No evidence was submitted indicating that any court proceedings took place
with regard to the above allegations of sexual misconduct. Shelia Nelson, 34 years old in
2005 and a resident of Breeden, Mingo County, was not called to testify during the
appellant's trial. In ruling that the cross-examination would be allowed, the Circuit Court
concluded that the previously undisclosed 1987 report from the child protective services
worker was a sufficient basis to permit the State to rebut the appellant's character evidence
that he was a family man who would not rape or sexually assault women. The report, sealed
or unsealed, was never admitted into evidence.
Reviewing the Circuit Court's ruling de novo in the context of Rules 404(a)(1)
and 404(b), this Court finds it difficult to sustain the proposition that the cross-examination
elicited nothing more than rebuttal character evidence. Although the alleged acts may have
been relevant to whether the appellant was a person who would rape or sexually assault
women, the Circuit Court, beyond summarily concluding that the report could serve as a
basis for the State's cross-examination, never engaged in a factual determination concerning
whether there was sufficient evidence to show that the past acts occurred. LaRock, supra.
No in camera hearing was conducted, and no specific findings were made with regard to
whether the appellant committed multiple acts, whether he committed them against one or
more of his sisters, the extent to which he and his brother, Clinty Nelson, may have both
committed them and whether the alleged acts were remote in time to the current charges.
Moreover, the State's cross-examination concerning the alleged acts of past
sexual misconduct was noticeably prejudicial. Not only were the accusations with regard to
the sisters inflammatory in themselves, their impact before the jury was, no doubt, enhanced
by the suggestion that some of the acts were committed by both the appellant and Clinty. By
the time the appellant was cross-examined, the jury had been told by the Circuit Court during
the jury selection process that Clinty Nelson had been convicted of crimes concerning Wanda
Lesher, and the jury had heard about Clinty Nelson's involvement in those crimes from
Alfred Dingess, Jr., and Zandell Bryant. Consequently, to the extent the appellant was
associated with Clinty Nelson during the State's cross-examination upon the alleged past
acts, the Circuit Court's conclusion that the cross-examination brought out evidence only
related to the appellant's character is problematic. In any event, the Circuit Court did not
weigh the propriety of that evidence against its prejudicial effect as provided under Rule 403.
Finally, during the cross-examination of appellant Nelson, and in closing
argument, the State suggested that the appellant sexually assaulted his sister, Shelia Nelson,
just like Wanda Lesher, or did the same things to Wanda Lesher as he did to his sister, see n. 9, supra, which, a fortiori, necessitated the precautionary measures required under
Rule 404(b). In addition to the absence of an in camera hearing and the balancing of
considerations incumbent under Rule 404(b), no limiting instructions concerning the State's
cross-examination were given to the jury.
In State v. McDaniel, 211 W. Va. 9, 560 S.E.2d 484 (2001), this Court
confirmed the above principles of LaRock and McGinnis, and, in doing so, cited syllabus
point 16 of State v. Thomas, 157 W. Va. 640, 203 S.E.2d 445 (1974), which observes:
In the exercise of discretion to admit or exclude evidence
of collateral crimes and charges, the overriding considerations
for the trial court are to scrupulously protect the accused in his
right to a fair trial while adequately preserving the right of the
State to prove evidence which is relevant and legally connected
with the charge for which the accused is being tried.
State v. Compton, 167 W. Va. 16, 20, 277 S.E.2d 724, 727 (1981); syl. pt. 2, State v. Messer,
166 W. Va. 806, 277 S.E.2d 634 (1981).
The facts in this case are difficult to comprehend. It was undisputed at trial that
Wanda Lesher suffered multiple sexual assaults by her assailants and repeated beatings with
the two-by-four at the Cemetery while pleading to be allowed to go home. Shortly thereafter,
she was put in a pond in Messenger Hollow, unconscious but still alive, and ultimately
strangled before being left in a shallow grave. No physical evidence, however, directly
connected the appellant with those terrible crimes, and, thus, the verdict of the jury rested
largely upon the credibility of the witnesses, primarily Alfred Dingess, Jr., and Zandell
Bryant. The witnesses included the appellant himself who denied committing the crimes
against Wanda Lesher and who denied committing the alleged acts of past misconduct raised
by the State, for the first time, during his cross-examination. One such allegation so raised
was that both the appellant and Clinty Nelson had sexually abused their sister, whereas the
current indictment, in Count VI, associated the appellant with others, including Clinty
Nelson, in the charge of conspiracy to commit sexual assault against Wanda Lesher. As
difficult as this case may be, this Court can only conclude that, in the absence of the
protections afforded by Rule 404(b), the cross-examination by the State, as allowed by the
Circuit Court, denied the appellant a fair trial.
The verdict of the jury returned on April 14, 2005, the resulting convictions,
as well as the May 20, 2005, sentencing order, are set aside, and this case is remanded to the
Circuit Court of Mingo County, West Virginia, for a new trial. (See footnote 10)
In addition to the assignment of error discussed above, the appellant also contends
that the Circuit Court committed error in admitting, over his objection, Zandell Bryant's
pretrial statement to the State Police. In the statement, Bryant implicated himself as well as
Clinty Nelson and the appellant in the crimes committed against Wanda Lesher. The Circuit
Court admitted the statement pursuant to Rule 804(b)(3) of the West Virginia Rules of
Evidence as an exception to the hearsay rule, i.e., a statement against interest, where the
declarant is unavailable as a witness. The State concedes that Rule 804(b)(3) did not apply
because, although the statement was admitted during the testimony of a State Trooper called
in the State's case-in-chief, Bryant was available and was also called as a witness during the
State's case-in-chief. The State contends that the error was harmless because Bryant's trial
testimony was consistent with his pretrial statement. Nevertheless, inasmuch as this case is
remanded for a new trial, this Court determines this issue to be moot.
Thus, while this Court need not definitively or preemptively determine the
admissibility of Bryant's pretrial statement in this opinion, we note, as guidance concerning
further proceedings below, Rule 801(d)(1)(B) of the West Virginia Rules of Evidence which
indicates that a prior statement by a witness is not hearsay if: The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement, and the
statement is . . . (B) consistent with the declarant's testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or improper influence
or motive. According to the appellant, Bryant's pretrial statement was improperly offered
as a prior consistent statement and not to rebut a charge against Bryant of recent fabrication
or improper influence or motive.
Also moot is the appellant's assertion that the Circuit Court should have declared a
mistrial when the prosecutor, during opening statements, emphasized the convictions of
others previously obtained concerning Wanda Lesher's death, rather than the nature of the
evidence to be presented during the appellant's trial. The Circuit Court declined to declare
a mistrial but gave the jury a cautionary instruction. See, syl. pt. 1, State v. Dunn, 162 W. Va.
63, 246 S.E.2d 245 (1978) (A judgment of conviction will not be reversed because of
improper remarks by a prosecuting attorney in his opening statement to a jury which do not
clearly prejudice the accused or result in manifest injustice.) Upon review, this Court
concludes that the cautionary instruction was a sufficient remedy under the circumstances
and that a mistrial was not warranted. In view of the granting of a new trial, however, further
comment upon this issue is unnecessary.