647 S.E.2d 539
No. 33222 State of West Virginia v. Jeremiah David Mongold
Starcher, J., concurring:
In State v. Scott, 206 W.Va. 158, 168, 522 S.E.2d 626, 636 (1999), I stated in my dissent that Rule 404(b) evidence has become a runaway train in criminal cases. I continue to adhere to this opinion. In far too many cases, prosecutors gain an unfair advantage by telling the jury about a defendant's other bad acts, thereby tainting the jury's consideration of the evidence relating to the actual offense being tried. For example, once a jury hears that a defendant has been convicted of a similar crime in the past, the jury is far more likely to believe that the defendant is guilty of the charged offense. State v. Fox, 207 W.Va. 239, 241, 531 S.E.2d 64, 66 (1998) (Starcher, J. dissenting opinion). Such prejudice is almost inherent in other bad acts evidence, and this Court has, far too often, allowed the prosecutors to get away with this unfair practice.
However, the instant case provides a good example of the rare instance when Rule 404(b) other bad acts evidence should properly be admitted. (See footnote 1)
In the instant case, the appellant argued that the court erred in admitting testimony about a previous domestic abuse incident involving the appellant, and in admitting testimony about a violent incident at a Christmas party.
However, the evidence of the prior domestic abuse incident involving a child rebutted the appellant's claim of accident or mistake. The appellant claimed that any injury to the child victim in the instant case was accidental and inadvertent. Yet, in the previous incident, the appellant had injured another child, either intentionally or due to a reckless disregard for the child's safety.
Moreover, the appellant offered evidence tending to show that he was a person with a good reputation and a good character. The appellant called neighbors who testified that they were comfortable with leaving the appellant alone with their children. The appellant's counsel specifically asked one witness: Do you feel comfortable with [the appellant] Jeremiah being around your children? The prosecutor, therefore, quite reasonably presented evidence of the previous incident to show that the appellant was not, in fact, a man who could be trusted around children.
West Virginia Rules of Evidence, Rule 405(a), states that once the defense has presented evidence of the defendant's character, the prosecution is allowed to inquire into specific incidents of conduct. (See footnote 2) Since the appellant opened the door to such evidence, the trial court properly admitted the evidence of the prior domestic abuse incident.
The trial court also did not err in admitting evidence about an incident that occurred at a Christmas party, because the appellant again opened the door to this evidence.
The appellant's counsel asked the appellant's father about the appellant's employment, in an effort to show that the appellant had a stable living situation. On cross- examination, the prosecutor asked the appellant's father whether the appellant still maintained the employment in question. Learning that the appellant no longer had this employment, the prosecutor asked why. The appellant's father said that there had been an incident, but that he did not know the details. During the subsequent testimony of the appellant's wife, the appellant's counsel again brought up the issue of his employment _ again to show the stability of the appellant's living situation. On cross-examination, the prosecutor asked about the incident at the Christmas party that led to the appellant's losing his job.
Normally, the evidence about the incident at the Christmas party would have been inadmissible. However, because the appellant opened the door to this testimony on direct examination by asking his own witnesses about the appellant's employment, the evidence about the Christmas party incident, which refuted the appellant's evidence of his stability, was admissible.
Rule 404(b) evidence is subject to the probative-versus-prejudicial balancing test. See Syllabus Point 9, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994). (See footnote 3) Of course, the Rule 404(b) evidence in the instant case was highly prejudicial. However, the defendant invited the admission of such evidence when he tried to portray himself as a peaceful person who could be trusted around children.
I believe that the trial court properly weighed the prejudicial versus probative factors, and came to the correct decision to admit the evidence.
For these reasons, I concur with the Court's judgment and decision in affirming the appellant's conviction. (See footnote 4)