Link to PDF file
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2001 Term
THE STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee,
DAVID E. MCDANIEL,
Defendant Below, Appellant.
Appeal from the Circuit Court of Ohio County
Hon. Fred Risovich, II
Case No. 99-F-51
REVERSED AND REMANDED
Submitted: June 5, 2001
Filed: July 6, 2001
Scott Smith, Esq.
D. Herndon, Esq.
Wheeling, West Virginia
Stephen L. Vogrin, Esq.
Heather S. Wood
Assistant Prosecuting Attorney
Assistant Public Defender
Ohio County Prosecuting Attorney's Office
Wheeling, West Virginia
Wheeling, West Virginia
Attorneys for Appellant
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM .
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show that he 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. W.Va.R.Evid.
404(b). Syllabus Point 1, State v. Edward Charles L., 183 W.Va.
641, 398 S.E.2d 123 (1990).
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. Syllabus Point 16,
State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
The instant case is before this
Court on an appeal from the Circuit Court of Ohio County. The appellant, David
E. McDaniel, was charged with the felony offenses of sexual assault in the second
degree, W.Va. Code, 61-8B-4  and burglary, W.Va. Code, 61-3-11
 . A jury trial was held on February 2-3, 2000, and Mr. McDaniel was found
guilty of the lesser included offense of sexual abuse in the first degree, and
of burglary. The circuit court imposed consecutive sentences of 1 to 5 years (plus
a $10,000 fine) for the offense of sexual abuse in the first degree, and 1 to
15 years for the offense of burglary. Mr. McDaniel appeals his conviction.
The State charged that on April
14, 1999, Mr. McDaniel broke into an apartment where Terri O.See
footnote 1 1 resided, and while Ms. O. was sleeping , Mr. McDaniel
penetrated Ms. O.'s vagina with his finger. Mr. McDaniel admitted to being in
Ms. O.'s apartment on the night in question. According to Mr. McDaniel, however,
he and Ms. O had a consensual sexual relationship.
At Mr. McDaniel's trial, the
State called as a witness Brenda D., who testified that approximately 12 years earlier, in 1987, Mr. McDaniel had broken into
Ms. D.'s apartment and had beaten and raped her. Ms. D. never reported the alleged
beating and rape to the police. Mr. McDaniel admitted at trial to having a sexual
relationship with Ms. D., but he denied raping or beating her.
Before Mr. McDaniel's trial,
the State disclosed the substance of Ms. D.'s proposed testimony to Mr. McDaniel.
The State also disclosed that on December 29, 1998, Ms. D. had pled guilty in
Ohio to the misdemeanor offense of Complicity in Theft. Specifically,
while working at the checkout counter at a discount store, Ms. D. would check-
out certain customers but would not ring up all their items. Later, she and
the customers would split the unpaid-for merchandise.
At trial, the circuit court
allowed Ms. D. to testify that Mr. McDaniel had raped Ms. D. in 1987. However,
the circuit court did not allow Mr. McDaniel to impeach Ms. D. with evidence
of her prior conviction.
Mr. McDaniel asserts four assignments
of error: (1) the trial court erred in admitting Ms. D.'s testimony regarding
the 12-year-old allegation of rape; (2) the trial court erred by not allowing
Mr. McDaniel to impeach Ms. D. with her prior conviction; (3) the trial court
erred in failing to allow Mr. McDaniel to present evidence to the effect that,
prior to the time of the alleged sexual abuse, Mr. McDaniel had told several
persons that he was having a sexual relationship with Ms. O; and (4) the verdict
form on which the jury convicted Mr. McDaniel specified the offense of misdemeanor
burglary, which is not a crime in West Virginia.
We find that Mr. McDaniel's
conviction must be reversed, based on the admission of Ms. D.'s testimony and
the exclusion of the impeachment evidence.
The first asserted error involves
the admission of prior bad acts evidence under W.Va. Rules of
Evidence 404(b) .See footnote
2 2 Typically, evidence of other uncharged crimes is not admissible
against a defendant in a criminal case. This general exclusion is to
. . . prevent the conviction
of an accused for one crime by the use of evidence that he has committed other
crimes, and to preclude the inference that because he had committed other crimes
previously, he was more liable to commit the crime for which he is presently
indicted and being tried.
State v. Thomas, 157 W.Va. 640, 654, 203 S.E.2d 445, 455 (1974) . However,
relevant other acts evidence may be introduced for certain specific
purposes if the evidence's probative value outweighs its prejudicial effect.
We said in Syllabus Point 1,
State v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990) that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that he 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. W.Va.R.Evid. 404(b).
Because of the potential for
unfair prejudice that is inherent in prior bad acts evidence, the
following standard is used when trial courts are deciding whether to admit Rule
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.
Syllabus Point 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
In cases that involve the interpretation
of the West Virginia Rules of Evidence and the admissibility of evidence,
two standards of review are applied. In State v. Sutphin, 195 W.Va. 551,
466 S.E.2d 402 (1995), this Court said that:
There are two interrelated
standards that apply . . . . First, an interpretation of the West Virginia Rules
of Evidence presents a question of law subject to de novo review. Second, a
trial court's ruling on the admissibility of testimony is reviewed for an abuse
of discretion, but to the extent the [circuit] court's ruling turns on
an interpretation of a [West Virginia] Rule of Evidence our review is plenary.
195 W.Va. at 560, 466 S.E.2d at 411 quoting Gentry v. Mangum, 195 W.Va.
512, 518 n.4, 466 S.E.2d 171, 177 n.4 (1995).
Additionally, a three-step
analysis is used in reviewing a circuit court's Rule 404(b) evidentiary rulings.
The standard of review
for a trial court's admission of evidence pursuant to Rule 404(b) [of the West
Virginia Rules of Evidence] involves a three-step analysis. First, we review
for clear error the trial court's factual determination that there is sufficient
evidence to show the other acts occurred. Second, we review de novo whether
the trial court correctly found the evidence was admissible for a legitimate
purpose. Third, we review for an abuse of discretion the trial court's conclusion
that the other acts evidence is more probative than prejudicial
under Rule 403.
State v. LaRock, 196 W.Va. 294, 310-311, 470 S.E.2d 613, 629-630 (1996)
(footnote and citations omitted).
The trial court judge must
carefully scrutinize proffered Rule 404(b) evidence before allowing the evidence
to be heard by the jury. Rule 404(b) evidence must be offered for a specific
and legitimate purpose.
When offering evidence under
Rule 404(b) of the West Virginia Rules of Evidence, the prosecution is required
to identify the specific purpose for which the evidence is being offered and
the jury must be instructed to limit its consideration of the evidence to only
that purpose. It is not sufficient for the prosecution or the trial court merely
to cite or mention the litany of possible uses listed in Rule 404(b). The specific
and precise purpose for which the evidence is offered must clearly be shown
from the record and that purpose alone must be told to the jury in the trial
Syllabus Point 1, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
Legitimate purposes include
proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident. W.Va.R.E. 404(b) . Rule 404(b)
evidence also can be admissible as proof of modus operandi. State
v. Dolin, 176 W.Va. 688, 698 n. 14, 347 S.E.2d 208, 218 n. 14 (1986) (overruled,
in part, on other grounds by State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990)); McGinnis, 193 W.Va. at 156,
455 S.E.2d at 525.
Modus operandi is the theory
that where a defendant commits a series of crimes which bear a unique pattern
such that the modus operandi is so unusual it becomes like a signature.
State v. Dolin, 176 W.Va. at 698, n. 14, 347 S.E.2d at 218, n. 14. Modus
operandi may be admissible as Rule 404(b) evidence.
Other-crime evidence may be admitted
if the evidence of other crimes is so distinctive that it can be seen as a signature
identifying a unique defendant, such as the infamous Jack the Ripper . . . . [E]vidence
of the commission of the same type of crime is not sufficient on this theory unless
the particular method of committing the offense, the modus operandi (or
m.o.), is sufficiently distinctive to constitute a signature. Other- crimes evidence
is not permissible to identify a defendant as the perpetrator of the charge act
simply because he or she has at other times committed the same garden variety
criminal act . . . .
2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence
§ 404.22[c], at 404-121 to 404-122 (Joseph M. McLaughlin, ed.,
Matthew Bender 2d ed. 2001).
When Rule 404(b) evidence
is offered to establish modus operandi, the proffering party must make
a showing of substantial similarity and uniqueness to establish the proffered
evidence's probative value. See State v. McGinnis, 193 W.Va. at 156, 455
S.E.2d at 525.
For evidence of an uncharged
crime or bad act to be admitted under Rule 404(b), the trial court
must find that the State proved the uncharged crime or bad act by
preponderance of the evidence. Syllabus Point 2, State v. McGinnis,
supra. The evidence is relevant only if the jury can reasonably infer
that the act occurred and that the defendant was the actor. State v.
McGinnis , 193 W.Va. at 155-156, 455 S.E.2d at 524-525.
Additionally, Rule 404(b) evidence
must not cause unfair prejudice. Evidence of other vices and crimes is excluded
not because of its inherent lack of probative value, but rather as a precaution
against inciting undue prejudice and permitting the introduction of pointless
collateral issues . . . . State v. McGinnis, 193 W.Va. at 153 n.
5, 455 S.E.2d at 522 n. 5, citing I Franklin D. Cleckley, Handbook on Evidence for West
Virginia Lawyers, 4-5(A) at 325 (3rd Ed. 1994).
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.
Syllabus Point 16, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).
Applying the foregoing
standards, we first review for clear error the trial court's factual determinations.
At the in camera hearing required by Dolin and McGinnis,
Ms. D. testified to being raped and beaten by Mr. McDaniel. The circuit court
found by a preponderance of the evidence that Ms. D.'s allegations were true.
The circuit court further found that the probative value of the evidence was
not outweighed by its prejudicial effect.
Although the evidence offered
by Ms. D. was over 12 years old, somewhat contradictory,See
footnote 3 3 and uncorroborated, we find no clear error in the
trial court's determination that the evidence was sufficient for a jury to conclude
that the attack did occur.
We next review the purpose for
which the trial court admitted the evidence. In the instant case, the State
offered the evidence to establish modus operandi. Typically, modus
operandi evidence is used when the defendant's identity is in question.
See, e.g., U.S. v. McDowell, 250 F.3d 1354, 1364 (11th Circ. 2001); Coleman v. Mitchell,
244 F.3d 533, 542 (6th Circuit 2001); U.S. v. Rodriguez, 215 F.3d 110,
119 (1st Circ. 2000); State v. Sladek, 835 S.W.2d 308, 317 (Mo. 1992).
In the instant case, Mr. McDaniel's identity was not at issue. Ms. O. knew and
identified Mr. McDaniel. Mr. McDaniel admitted to being in Ms. O.'s bedroom
on the night in question, and at least one other witness placed Mr. McDaniel
in Ms. O.'s apartment on the night in question.
We next compare the two alleged
incidents to determine if they tend to establish a unique pattern or signature
modus operandi as explained in Dolin. The two alleged
incidents are similar because in both instances, the attacker broke into a victim's
home at night. However, the incident against Ms. D. allegedly involved a forcible
beating and rape, where the attacker forced his way to complete sexual assault,
despite the victim's strenuous and lengthy efforts to fight off her attacker.
In contrast, Ms. O. did not make any allegation of a beating or an attempt to
rape. Further, Ms. O. testified that she woke up to a touching, and ordered
her attacker out of her bedroom, whereupon Mr. McDaniel left. Ms. D. testified
that she was physically attacked by a single individual. Ms. O., in contrast,
testified that two people were present in her home during her attack. Ms. D.
testified that she had no further contact with her attacker, while Ms. O. testified
that the defendant attempted to contact her several times soon after the incident.
We conclude that the two alleged
incidents were not sufficiently similar nor sufficiently unique, to invoke the
modus operandi principle. We therefore conclude that the State's Rule 404(b) evidence did not meet the legitimate purpose test.
Having found that the Rule
404(b) evidence was not offered for a legitimate purpose, it is not necessary
for this Court to consider the probative value of the evidence versus the evidence's
prejudicial effect. However, we observe that a Rule 404(b) analysis necessarily
involves a holistic balancing of relevant considerations, weighing the defendant's
right to a fair trial and the State's right to prove its case by introducing
relevant evidence. In such a balancing, where the potential for unfair prejudice
is great, the legitimate purpose of the 404(b) evidence must be particularly
well shown. Conversely, where the potential for prejudice is slight, the legitimate
purpose of the evidence can be less compellingly shown by the State.
In the instant case, the potential
for unfair prejudice, by permitting evidence to come before the jury alleging
that the defendant had previously raped a woman, was enormous. Any jury, no
matter how well instructed, would be sorely tempted to convict a defendant simply
because of such a prior act, regardless of the quantum of proof of the offense
for which the defendant was actually charged. The trial court must understand
that it alone stands as the trial barrier between legitimate use of Rule 404(b)
evidence and its abuse. State v. McGinnis, 193 W.Va. at 155, 455
S.E.2d at 524.
Having concluded in the instant
case that the Rule 404(b) evidence should not have been admitted, we need not
discuss at length whether the circuit court erred in not allowing impeachment
of Ms. D. with evidence of her prior conviction. However, we note that West Virginia Rules of Evidence 609(a)(2)(B)  states:
[E]vidence that the witness
has been convicted of a crime shall be admitted if it involved dishonesty or
false statement, regardless of the punishment.
Ms. D. unlawfully and fraudulently
converted to her own use goods that belonged to her employer, and was convicted
of the misdemeanor of complicity in theft in December 1998. This
was a crime of dishonesty. By not allowing Mr. McDaniel to impeach Ms. D. with
her criminal conviction, the trial court abused its discretion.See
footnote 4 4
Evidentiary rulings are within
the sound discretion of the trial court; but trial courts must pay particular
attention to the possibility of unfair prejudice when considering evidence under West Virginia Rules of Evidence 404(b). Mr. McDaniel
may or may not be guilty of the offenses with which he was charged. But he is
in any event entitled to a fair trial on the merits of the charges against him.
For the above discussed reasons,
Mr. McDaniel's convictions for sexual abuse in the first degree and burglary
are reversed, and this case is remanded for a new trial.
Reversed and Remanded.
Footnote: 1 1Consistent
with our practice in cases involving sensitive matters, we use the victim's initials.
Footnote: 2 2West
Virginia Rules of Evidence 404(b) states:
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.
Footnote: 3 3Ms.
D. claims that she engaged in a 2-hour struggle with her attacker but suffered
no marks or injuries. She further testified that she was also screaming but that
her two children slept through the attack.
Footnote: 4 4With
respect to Mr. McDaniel's assertion that the trial court improperly refused to
let him call witnesses who would say that Mr. McDaniel told them that he was having
a sexual relationship with Ms. O., we observe that a prior consistent statement
may not be hearsay if it is introduced for the purpose of rebutting an accusation
of recent fabrication. Under West Virginia Rules of Evidence 801(d)(1)(B)
 a prior consistent out-of-court statement of a witness who testifies and
can be cross-examined about the statement, in order to be treated as non-hearsay
under the provisions of the Rule, must have been made before the alleged fabrication,
influence, or motive came into being. Syllabus Point 6, State v. Quinn,
200 W.Va. 432, 490 S.E.2d 34 (1997). If these witnesses are proffered again at
a re- trial, the trial court should review the proposed testimony in camera and
decide if the testimony could, if believed, buttress Mr. McDaniel's version of
events by rebutting the suggestion of recent fabrication. If the circuit court
finds that the evidence is relevant in this fashion, then the circuit court should
admit the evidence.
Also, with respect to Mr. McDaniel's assertion that the
jury convicted him of a crime that does not exist in West Virginia, specifically,
the misdemeanor offense of Burglary, we find no reason to address
this issue. However, the trial court is cautioned to correct this obvious error