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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2010 Term
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
DARRELL EUGENE SMITH,
Defendant Below, Appellant
Appeal from the Circuit Court of Kanawha County
Honorable Jennifer Bailey, Judge
Criminal Action No. 07-F-289
Submitted: March 3, 2010
Filed: May 6, 2010
Gregory L. Ayers, Esq.
Deputy Public Defender
Matthew D. Brummond, Esq.
Assistant Public Defender
Charleston, West Virginia
Attorneys for Appellant
Darrell V. McGraw, Jr., Esq.
Robert D. Goldberg, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. This Court reviews the circuit court's final order and ultimate
disposition under an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de novo
Point 4, Burgess v. Porterfield
, 196 W.Va. 178, 469 S.E.2d 114 (1996).
2. In the trial of a criminal prosecution, where guilt or innocence depends
on conflicting evidence, the weight and credibility of the testimony of any witness is for jury
determination. Syllabus Point 1, State v. Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952).
3. Assuming it otherwise meets the requirements of admissibility, the
reliability of a child's testimony is properly a matter for assessment by the trier of fact who
is charged with making determinations regarding the weight and credibility of such
4. The determination of whether 'manifest necessity' that will justify
ordering a mistrial over a defendant's objection exists is a matter within the discretion of the
trial court, to be exercised according to the particular circumstances of each case. Syllabus
Point 3, Porter v. Ferguson, 174 W.Va. 253, 324 S.E.2d 397 (1984).
This case is before the Court upon an appeal of the November 13, 2008, order
of the Circuit Court of Kanawha County which sentenced the appellant, Darrell Eugene
Smith, to thirty to sixty years in the State penitentiary following his conviction by a jury of
five counts of sexual abuse by a custodian and two counts of first degree sexual abuse. In
this appeal, the appellant argues that the circuit court erred by not conducting a pretrial taint
hearing regarding the testimony of the two victims, the appellant's granddaughters. The
appellant also contends that the circuit court erred by not granting a mistrial based upon the
alleged improper admission of evidence by the State in violation of Rule 404(b) of the West
Virginia Rules of Evidence. The appellant seeks reversal of the circuit court's order and a
remand of the case to the circuit court for a new trial. Based upon the parties' briefs and
arguments in this proceeding, as well as the relevant statutory and case law, this Court is of
the opinion that the circuit court did not commit reversible error and accordingly, affirm the
The appellant, Darrell Eugene Smith, was tried and convicted in the Kanawha
County Circuit Court for sexually abusing his two granddaughters, B.S. and N.S. (See footnote 1)
At the time the sexual abuse began, B.S. was eleven years old and N.S. was fourteen years old,
while the appellant was sixty years old. At trial, B.S. testified that the abuse occurred every
other weekend for approximately two years. She explained that she had not reported the
abuse during that time because she was afraid of the appellant. She testified that the
appellant touched her vagina and breasts with his hands and that he placed her hand on his
penis. These incidents occurred in the appellant's bedroom.
The allegations of sexual abuse first surfaced when B.S. told a friend of hers
about the appellant's conduct after that friend had told her about experiencing a similar
situation with her own father. B.S. testified that the last time the appellant sexually abused
her was two weeks prior to telling her friend about it. B.S. said that her friend told her that
she needed to speak with an adult about the actions of the appellant. Thereafter, B.S.
approached her school counselor, who, upon hearing about B.S.'s allegations, set up a
meeting with B.S.'s mother Anita S. and the school principal.
Upon hearing B.S.'s revelations, Anita S. approached her older daughter, N.S.,
and asked her if anything had happened between her and the appellant. N.S. told her that the
appellant had molested her during weekend sleepovers at his home. At trial, N.S. testified
that the appellant repeatedly touched her breasts and vagina which he penetrated with his
finger. She said that these acts occurred when she was between twelve and fourteen years
old. She also testified that the appellant forced her to touch his penis with both hands and
her mouth and that he would ejaculate on her face.
On November 7, 2005, B.S. and N.S. were interviewed by a Child Protective
Services (CPS) worker, Jeff Sprouse. Two months later both B.S. and her sister were
interviewed by Dunbar Police Sergeant W.M. Moss. Subsequently, the appellant was
indicted on June 7, 2007, and charged with six counts of sexual abuse by a custodian and six
counts of sexual abuse in the first degree. In addition to B.S. and N.S., their younger sister,
A.S., was also named as a victim. However, prior to trial, the two counts of the indictment
involving A.S., were dismissed by the State.
At trial, the appellant denied the allegations of sexual abuse. He presented
numerous witnesses to state that N.S. and B.S. lived in a sexually-charged home
environment with their parents who paid little attention to their five children, but paid an
inordinate amount of attention to sexuality. The appellant argued that it was against this
backdrop that the charges of abuse against him resulted. He further contended that Anita S.,
the victims' mother and his daughter-in-law, had a motive to press the charges against him
due to the fact that he had offered to pay for his son, John S., to divorce her after several
years of marital problems. During rebuttal testimony, however, John S. testified that while
his father had made such an offer, he only did so on one occasion years before the allegations
of sexual abuse were made. (See footnote 2)
The appellant's trial lasted two days and on July 24, 2008, he was convicted
of five counts of sexual abuse by a custodian pursuant to W.Va. Code § 61-8D-5 (2005), (See footnote 3)
two counts of first degree sexual abuse under W.Va. Code § 61-8B-7(a)(1) (2006). (See footnote 4)
entered November 13, 2008, the circuit court sentenced the appellant to thirty to sixty years
in the state penitentiary. This appeal followed.
As noted above, the appellant assigns as error the circuit court's failure to hold
a pretrial taint hearing with regard to the testimony of his granddaughters. This Court
reviews the circuit court's final order and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a clearly erroneous standard;
conclusions of law are reviewed de novo
. Syllabus Point 4, Burgess v. Porterfield
W.Va. 178, 469 S.E.2d 114 (1996). Where the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a statute, we apply a de novo
standard of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L.
, 194 W.Va. 138, 459
S.E.2d 415 (1995).
With regard to the appellant's second assignment of error regarding the circuit
court's denial of his motion for a mistrial, this Court has stated that [t]he decision to grant
or deny a motion for mistrial is reviewed under an abuse of discretion standard. State v.
, 222 W.Va. 284, 288, 664 S.E.2d 169, 173 (2008). In State v. Williams
, 172 W.Va.
295, 305 S.E.2d 251 (1983), this Court explained that:
The decision to declare a mistrial, discharge the jury and
order a new trial in a criminal case is a matter within the sound
discretion of the trial court. A trial court is empowered to
exercise this discretion only when there is a 'manifest necessity'
for discharging the jury before it has rendered its verdict. This
power of the trial court must be exercised wisely; absent the
existence of manifest necessity, a trial court's discharge of the
jury without rendering a verdict has the effect of an acquittal of
the accused and gives rise to a plea of double jeopardy.
172 W.Va. at 304, 305 S.E.2d at 260 (citations omitted). With these standards in mind, the
parties' arguments will be considered.
A. Pretrial Taint Hearing
The appellant first contends that the circuit court erred by denying his motion
for a pretrial taint hearing to determine the reliability of the victims' testimony. Based on an
expert opinion by Dr. Fred Kreig, a clinical psychologist, the appellant argues that the pretrial
statements and interviews of the victims were the result of suggestive questioning and
coaching by the children's mother. In support of his motion, the appellant relied upon State
v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994), a New Jersey case which established a
procedure in that State for reviewing the reliability of testimony from child witnesses.
Michaels involved a nursery school teacher who was convicted of sexually
abusing many of the children entrusted to her care. The majority of the evidence introduced
at trial against the defendant consisted of pretrial statements that had been elicited from the
alleged child victims during the course of the State's investigation. On the appeal, the Michaels Court reversed the defendant's convictions finding that the interrogations of the
alleged child abuse victims were improper. The Michaels Court ruled that if the State wished
to retry the defendant, it would be required to be proved by clear and convincing evidence
at a pretrial hearing that the children's statements and testimony retained a sufficient degree
of reliability to warrant admission at trial. In the case at bar, the appellant contends that the
trial court should have held a pretrial hearing like the one required in Michaels to determine
the reliability of the testimony and statements made by B.S. and N.S.
The State maintains, however, that the appellant's argument that the circuit
court should have allowed a pretrial taint hearing based upon Michaels is without merit. The
State first points out that there is no statutory provision, case law, or court rule that allows
for such a hearing. The State further asserts that such a hearing was unnecessary in this case
as all of the interviews of the children were audiotaped and presented to the jury. Moreover,
Dr. Krieg testified extensively at trial on behalf of the appellant and opined that improper
methods of questioning were used during the interviews of the victims. Thus, the appellant
was permitted to present evidence to the jury concerning the reliability of the victims'
This Court's analysis will begin by considering the New Jersey Supreme
Court's decision in Michaels. A review of that case reveals that [t]he interrogations
undertaken in the course of [that] case utilized most, if not all, of the practices that are
disfavored or condemned by experts, law enforcement authorities and government agencies.
136 N.J. at 313, 642 A.2d at 1379. Unlike the case at bar, the circumstances of Michaels were extreme and flagrant by any reasonable standards of reliability. For example,
The initial investigation giving rise to defendant's
prosecution was sparked by a child volunteering that his teacher,
Kelly, had taken his temperature rectally, and that she had
done so to other children. However, the overwhelming majority
of the interviews and interrogations did not arise from the
spontaneous recollections that are generally considered to be
most reliable. Few, if any, of the children volunteered
information that directly implicated defendant. Further, none of
the child victims related incidents of actual sexual abuse to their
interviewers using free recall. Additionally, few of the
children provided any tell-tale details of the alleged abuse
although they were repeatedly prompted to do so by the
investigators. We note further that the investigators were not
trained in interviewing young children. The earliest interviews
with children were not recorded and in some instances the
original notes were destroyed. Many of the interviewers
demonstrated ineptness in dealing with the challenges presented
by pre-schoolers, and displayed their frustration with the
136 N.J. at 313-14, 642 A.2d at 1379. (Citations and footnotes omitted). The Michaels Court further explained:
Almost all of the interrogations conducted in the course
of the investigation revealed an obvious lack of impartiality on
the part of the interviewer. One investigator, who conducted the
majority of the interviews with the children, stated that his
interview techniques had been based on the premise that the
interview process is in essence the beginning of the healing
process. He considered it his professional and ethical
responsibility to alleviate whatever anxiety has arisen as a result
of what happened to them. A lack of objectivity also was
indicated by the interviewer's failure to pursue any alternative
hypothesis that might contradict an assumption of defendant's
guilt, and a failure to challenge or probe seemingly outlandish
statements made by the children.
136 N.J. at 314, 642 A.2d at 1379-80. The Michaels Court also found that:
The record is replete with instances in which children
were asked blatantly leading questions that furnished
information the children themselves had not mentioned. All but
five of the thirty-four children interviewed were asked questions
that indicated or strongly suggested that perverse sexual acts had
in fact occurred. Seventeen of the children, fully one-half of the
thirty-four, were asked questions that involved references to
urination, defecation, consumption of human wastes, and oral
sexual contacts. Twenty-three of the thirty-four children were
asked questions that suggested the occurrence of nudity. In
addition, many of the children, some over the course of nearly
two years leading up to trial, were subjected to repeated, almost
incessant, interrogation. Some children were re-interviewed at
the urgings of their parents.
136 N.J. at 314-15, 642 A.2d at 1380.
Additionally, the Michaels Court explained that the record of the investigative
interviews disclosed the use of mild threats, cajoling, and bribing. Moreover, positive
reinforcement was given to children who made inculpatory statements, whereas negative
reinforcement was expressed when children denied being abused or made exculpatory
statements. The children were also introduced to the police officer who had arrested the
defendant and were shown the handcuffs used during her arrest and mock police badges were
given to the children who cooperated. The Michaels Court explained that:
Throughout the record, the element of vilification
appears. Fifteen of the thirty-four children were told, at one time
or another, that Kelly was in jail because she had done bad
things to children; the children were encouraged to keep Kelly
in jail. For example, they were told that the investigators
needed their help and that they could be little detectives.
Children were also introduced to the police officer who had
arrested defendant and were shown the handcuffs used during
her arrest; mock police badges were given to children who
136 N.J. at 315, 642 A.2d at 1380. Moreover,
no effort was made to avoid outside information that could
influence and affect the recollection of the children. As noted by
the Appellate Division, the children were in contact with each
other and, more likely than not, exchanged information about
the alleged abuses. 264 N.J.Super. at 629, 625 A.2d 489.
Seventeen of the thirty-four children were actually told that
other children had told investigators that Kelly had done bad
things to children. In sum, the record contains numerous
instances of egregious violations of proper interview protocols.
Given this overwhelming evidence, the Michaels Court agreed with its
Appellate Division that the interviews of the children were highly improper and employed
coercive and unduly suggestive methods. The Michaels Court specifically found that a
substantial likelihood exists that the children's recollection of past events was both
stimulated and materially influenced by that course of questioning. Id. Therefore, the Michaels Court concluded that a hearing must be held to determine whether those clearly
improper interrogations so infected the ability of the children to recall the alleged abusive
events that their pretrial statements and in-court testimony based on that recollection are
unreliable and should not be admitted into evidence. 136 N.J. at 315-316, 642 A.2d at 1380.
Having thoroughly examined Michaels, it is clear that the circumstances of that
case are extraordinary and are substantially distinguishable from the situation before this
Court in the appellant's case. For example, in Michaels, the complaining witnesses were all
preschoolers, whereas B.S., the first granddaughter to come forward against the appellant
was just under twelve years old, while the second child to make sexual abuse allegations
against the appellant, N.S., was fifteen years old. Moreover, B.S.'s initial statement was
spontaneous and she recounted the same abuse to her friend, a school counselor, her mother,
a CPS worker, and to the police. Soon thereafter, the appellant was indicted and later
convicted of five counts of sexual abuse by a custodian and two counts of first degree sexual
abuse. In Michaels, the teacher was initially charged with a three count indictment involving
the alleged abuse of three boys. However, following two more months of extremely coercive
interviews of the children, a second indictment was returned containing 174 counts of various
charges involving 20 boys and girls. Four months later a third indictment of fifty-five counts
was added against that defendant.
In addition, in the case at hand, N.S. came forward after her mother asked her
whether she had something to say about her grandfather. In the Michaels case, there was
evidence that the complaining witnesses's statements were the result of bribery or coercion
as the children were given presents to influence the content of their statements. Furthermore,
unlike the situation in Michaels, the interviews of the two victims in this case were recorded
and the investigative notes were not destroyed. There is no evidence that the interviewers
demonstrated frustration with the victims based upon their answers during the interviews nor
is there evidence of a lack of impartiality by the interviewers. Likewise, the record is not
replete with evidence that the victims were asked blatantly leading questions, the victims
were not re-interviewed at the urging of their parents, and the victims were not subjected to
repeated, almost incessant, interrogation. As such, the appellant's contention that his
situation is analogous to the facts of Michaels is completely without merit.
Furthermore, despite the appellant's vigorous reliance on Michaels, it is
apparent that the majority of jurisdictions that have considered Michaels have not adopted
its holding. For example, in State v. Karelas, 28 So.3d 913 (Fla.App. 5 Dist. 2010), the
Florida appellate court explained:
In holding as we have, we have carefully considered State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994), upon
which the trial court placed significant reliance. There, the court
established a procedure for excluding a child witness's
testimony unless the state can establish that the suggestive
interview did not affect the witness's ability to testify truthfully.
Like the majority of jurisdictions that have considered Michaels,
we reject its conclusion. See, e.g., People v. Montoya, 149
Cal.App.4th 1139, 57 Cal.Rptr.3d 770, 778 (2007) (rejecting Michaels ); State v. Michael H., 291 Conn. 754, 970 A.2d 113
(2009) (noting that a majority of jurisdictions have rejected Michaels); State v. Ruiz, 141 N.M. 53, 150 P.3d 1003, 1008
(2006) (rejecting Michaels' novel approach); State v. Olah,
146 Ohio App.3d 586, 767 N.E.2d 755, 760 (2001) (rejecting
Michaels and requirement for pretrial taint hearing); State v.
Bumgarner, 219 Or.App. 617, 184 P.3d 1143 (2008) (rejecting
Michaels approach). The fact that suggestive questions might
have been posited is only one factor that bears on the reliability
of the testimony. We conclude that the reliability of the victim's
testimony can only be properly assessed after a trial on the
merits during which the trier of fact may consider all of the facts
Moreover, in People v. Montoya
, 149 Cal.App.4th 1139, 1149, 57 Cal.Rptr.3d 770, 778
(2007), a California Court of Appeal rejected Michaels
Appellant cites no authority and we can find none that approves
or requires Michaels-style taint hearings in California. Like
other states, we reject Michaels in favor of our well-established
competency jurisprudence. The relevant determination in
California is whether a minor victim is competent to testify.
The court explained, [t]he capacity to perceive and recollect is a condition for the
admissibility of a witness's testimony on a certain matter, rather than a prerequisite for the
witness's competency. Id. at 1150-57 Cal.Rptr.3d at 778-79. In State v. Olah, 146 Ohio
App.3d 586, 591-92, 767 N.E.2d 755, 759-60 (2001), the Ohio appellate court concluded
that: No Ohio appellate court has either followed Michaels or independently determined that
a pretrial taint hearing is required if a child witness is potentially contaminated. Similarly,
in United States v. Geiss, 30 MJ 678, 681 (1990), the U.S. Air Force Court of Military
Review also declined to follow Michaels and held that: We hold that evidence of suggestive
questioning or coercive pretrial interviews goes to the credibility of a witness rather than to
the admissibility of testimony.
In State v. Bumgarner, 219 Or.App. 617, 184 P.3d 1143 (2008), the Oregon
Court of Appeals provided:
We, too, reject the Michaels approach, for three reasons.
First, as the Michaels court explained, its creation of a taint
hearing procedure to determine the competency of child
witnesses was based on the United States Supreme Court's
eyewitness identification jurisprudence. Yet, neither that Court
nor the Oregon Supreme Court has extended the need for a
pretrial determination of reliability for due process purposes
beyond the narrow setting of eyewitness identification. See State
v. Classen, 285 Or. 221, 590 P.2d 1198 (1979) (citing United
States Supreme Court cases on exclusion of improperly obtained
eyewitness identifications). We see no reason to accord a
second category of evidence the extraordinary treatment that
courts have given to eyewitness identification testimony. Indeed,
even the Michaels court described its extension of eyewitness
identification principles into the child witness area as
extraordinary. Cf. Rock v. Arkansas, 483 U.S. 44, 61, 107
S.Ct. 2704, 97 L.Ed.2d 37 (1987) (in rejecting state rule that
barred defendant's posthypnosis testimony in all cases, Court
noted that [a] State's legitimate interest in barring unreliable
evidence does not extend to per se exclusions that may be
reliable in any individual case).
219 Or.App. at 633, 184 P.3d at 1151. The Bumgarner Court further explained:
Second, the Michaels court conflated the competency of
the witness with the reliability of potential testimony that the
witness might give. As noted above, Michaels rests on an
analogy to tainted eyewitness testimony. Yet, even in that
context, the court gave special treatment to a type of evidence,
not a type of witness. Whether a category of evidence is so
unreliable that its admission would violate due process is a
different question from whether a witness meets the very liberal
standards for competency that the evidence code (and due
process) contemplates. Even if some of a witness's testimony
could have been affected by the use of improper interviewing
techniques, it does not follow that the witness-in all
respects-cannot testify truthfully, cannot recall events, or cannot
relate them. The United States Supreme Court has never
suggested that evidence of taint is relevant to witness
Id. Finally, the Bumgarner Court concluded that, we believe that the trier of fact, rather
than the judge, is in the best position to determine the effect, if any, of improper interviewing
techniques on a witness's credibility. It explained that [i]t is axiomatic that determination
of witness credibility is normally for the trier of fact and, as we said in Lantz,
'Whether a person, who has the ability to perceive an event,
recall it and relate the recollection will tell the truth is to be
tested by cross-examination and not by a motion to disqualify
the witness as incompetent. The competency inquiry should be
made with a view to the preference toward allowing the trier of
fact to be the ultimate judge of the quality of the evidence. 44
Or.App. at 700, 607 P.2d 197.'
219 Or.App. at 633, 184 P.3d at 1151-52.
In the present case, as previously discussed, the appellant does not suggest that
the two victims lacked the capacity to see and recollect what happened to them. Instead, he
claims that their testimony is potentially the product of suggestive and leading questioning
which may have planted false memories in their subconscious. Thus, the issue is not whether
the victims are competent to testify; rather, the issue is whether their testimony is reliable.
It is a matter of the credibility of the witnesses and this Court has long held that credibility
determinations are made by the jury. As this Court said in Syllabus Point 1 of State v.
Harlow, 137 W.Va. 251, 71 S.E.2d 330 (1952), [i]n the trial of a criminal prosecution,
where guilt or innocence depends on conflicting evidence, the weight and credibility of the
testimony of any witness is for jury determination. See also State v. Ladd, 210 W.Va. 413,
425, 557 S.E.2d 820, 832 (2001) (Our rule says that credibility determinations are for the
jury[.]); Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 336 (1995)
(Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge [.]).
Here, the appellant introduced extensive expert testimony regarding the
claimed deficiencies in the interviews of the two victims and the jury was able to take that
testimony into account in evaluating the victims' in-court and out-of-court statements. More
specifically, jurors heard Dr. Krieg opine that both CPS and the Dunbar Police Department
used improper methods of questioning and that the interviews of the victims were too short,
that the victims' mother was present during the interviews, that the questioners used leading
questions, and that there was a lack of follow up by the interviewers. This Court notes that
Dr. Krieg offered his opinions based solely upon unofficial transcripts of the CPS and
Dunbar Police interviews, he did not listen to the victims' in-court testimony, and he did not
listen to the actual recordings of the victims' interviews. Nonetheless, all of the alleged
errors discussed by Dr. Krieg were thoroughly explored during the trial yet the jury chose to
convict the appellant.
In considering all the above, this Court concludes that requiring circuit courts
to hold pretrial taint hearings in every case involving a sexual abuse victim would necessarily
lead to a host of new issues on appeal and would more than likely become an abused
discovery tool for a defendant accused of such a crime. Even the far-reaching Michaels decision recognized that assessing reliability as a predicate to the admission of in-court
testimony is a somewhat extraordinary step. 136 N.J. at 316, 642 A.2d at 1381. We see no
reason to subject victims of sexual abuse to a new and unnecessary layer of interrogation that
is unlikely to yield any positive results. Sexual abuse victims are often children who are
more likely to experience short-term and long-term consequences such as behavioral
problems; social withdrawal; personality and/or substance abuse disorders; depression; and
psychiatric problems. Questions surrounding the techniques of interviewers can properly and
adequately be dealt with during cross-examination at trial as [c]ross examination is the
fundamental test of the reliability of testimony in our system of justice. State v. Cook, 175
W.Va. 185, 200, 332 S.E.2d 147, 162 (1985). Moreover, a prosecution that employs unfair
and deceptive techniques does so at its own peril as defendants will be able to challenge such
techniques in the presence of a jury and thus weaken or completely destroy a prosecution's
Thus, the circuit court did not commit reversible error by denying the
appellant's motion for a pretrial taint hearing as set forth in Michaels. As the Supreme Court
of Connecticut explained in State v. Michael H., 291 Conn. 754, 765, 970 A.2d 113, 121
(2009), [t]he majority of jurisdictions have rejected the Michaels approach on the ground
that existing procedures that address the competency and credibility of witnesses are
adequate to deal with concerns regarding child testimony. Likewise, our existing
procedures concerning the credibility of witnesses is also sufficient. As such, this Court now
holds that assuming it otherwise meets the requirements of admissibility, the reliability of a
child's testimony is properly a matter for assessment by the trier of fact who is charged with
making determinations regarding the weight and credibility of such testimony. As the
Supreme Court of the United States stated in Manson v. Braithwaite, 432 U.S. 98, 116, 97
S.Ct. 2243, 2253 (1977), [w]e are content to rely upon the good sense and judgment of
American juries, for evidence with some element of untrustworthiness is customary grist for
the jury mill. Accordingly, this Court affirms the circuit court on this issue.
B. 404(b) Evidence
The appellant next argues that the circuit court erred by not granting a mistrial
when B.S. testified about counts in the indictment that had been dismissed. Specifically, B.S.
testified as follows:
Q. All right. What about your grandparents, Gene and Lee
Ann? Are you close to them now?
A. No. Sir.
Q. Why is that? Do you know?
A. Because my grandfather hurt me and my two sisters.
Q. How do you mean he hurt you? What do you mean?
A. He molested me and my two sisters, N.S., and
The appellant contends that this testimony violated Rule 404(b) of the West Virginia Rules
of Evidence and therefore, his motion for a mistrial should have been granted. (See footnote 5) He argues
that he could not have received a fair trial when the entire jury heard about alleged other
bad acts. (See footnote 6) The appellant maintains that it is clear that the evidence impacted the jury,
influenced their credibility assessments of the witnesses, and foreclosed the possibility of
acquittal just moments after the State's case-in-chief began. Accordingly, the appellant
argues that the circuit court erred by not granting a mistrial.
Conversely, the State asserts that the circuit court was not in error when it did
not grant the appellant's motion for a mistrial. The State maintains that a single blurt-out
from one witness during a two-day trial, in which both victims testified about extensive
sexual abuse at the hands of the appellant, did not render the trial fundamentally unfair.
Furthermore, the State contends that the prosecutor was not attempting to introduce Rule
404(b) evidence. He was simply questioning the victim about whether she was close to her
grandparents, at which point she mentioned that the appellant had molested both of her
sisters. The State argues that following the defendant's objection, and after a bench
conference, the prosecutor cured the witness's statement by clarifying that she had no
knowledge of any abuse perpetrated by the appellant toward anyone other than herself. The
prosecutor asked: [B.S.], first off, you only have actual knowledge of anything happening
to you only is that right? The victim answered, Yes, sir. Next, the prosecutor asked:
That's the only thing you've ever witnessed, right? to which the victim responded by
nodding affirmatively. Moreover, toward the end of her testimony, and far removed from
the victim's brief comment regarding her two sisters, the circuit judge instructed the jury that:
witnesses can only testify about matters that they have direct knowledge about. That they
have been [sic] seen, observed or been a part to. So you should disregard any testimony
concerning any events of other people.
Our review of this matter does not indicate any abuse of discretion by the
circuit court, nor do we find that the circuit court acted in an arbitrary or irrational manner
in denying the appellant's motion for a mistrial. The appellant's assertion that the jury could
not move past B.S.'s brief and unsolicited comment is not supported by the record. During
a two-day trial, the prosecution presented significant evidence of the appellant's abhorrent
behavior toward his two granddaughters. Jurors heard that the appellant repeatedly touched
one of his granddaughter's breasts and vagina which he penetrated with his finger. They
learned that these acts occurred during the time when she was between twelve and fourteen
years old. The jurors further learned that the appellant forced her to touch his penis with both
hands and her mouth and that he would ejaculate on her face. Jurors then heard that this
same granddaughter had survived cancer just prior to the beginning of the appellant's sexual
abuse of her. Next, the jurors learned that with regard to a second granddaughter, the
appellant's sexual abuse of her occurred every other weekend for approximately two years.
Jurors then listened to that granddaughter explain that she was afraid of the appellant and that
he touched her vagina and breasts with his hands and that he placed her hand on his penis.
Finally, jurors heard from Robert Love, a man who attended church with the appellant prior
to the appellant's conviction. Mr. Love testified that on one occasion as the two of them
were standing in the church parking lot, just prior to church services beginning, the appellant
admitted his guilt to him in the underlying crimes when he said, If [the victims] forgave me
like they said they forgave me, why am I going through this? Why is this not closed? Why
is this case not closed if [the victims] forgave me? Why do I have to put up this money for
The appellant has failed to show a manifest necessity for a mistrial as there is
no evidence of prosecutorial overreaching. Moreover, the appellant specifically declined a
curative instruction at the end of the trial. As this Court has held, [t]he determination of
whether 'manifest necessity' that will justify ordering a mistrial over a defendant's objection
exists is a matter within the discretion of the trial court, to be exercised according to the
particular circumstances of each case. Syllabus Point 3, Porter v. Ferguson, 174 W.Va.
253, 324 S.E.2d 397 (1984). Given the flexibility afforded trial judges in this area, there is
no evidence that the circuit court abused its discretion in denying the appellant's motion for
Accordingly, for the reasons stated above, the final order of the Circuit Court
of Kanawha County entered on November 13, 2008
, is affirmed.
Our customary practice in cases involving minors is to refer to the children by their
initials rather than by their full names. See, e.g., In re Cesar L
., 221 W.Va. 249, 252 n. 1,
654 S.E.2d 373, 376 n. 1 (2007).
The State also presented testimony from Robert Love, who attended church with the
appellant. Mr. Love testified that the appellant was complaining to him that he had spent all
of his money on lawyers and that he did not know why the prosecution was continuing
against him because his granddaughters had forgiven him for his actions against them.
West Virginia Code § 61-8D-5, in part, provides:
(a) In addition to any other offenses set forth in this code,
the Legislature hereby declares a separate and distinct offense
under this subsection, as follows: If any parent, guardian or
custodian of or other person in a position of trust in relation to
a child under his or her care, custody or control, shall engage in
or attempt to engage in sexual exploitation of, or in sexual
intercourse, sexual intrusion or sexual contact with, a child
under his or her care, custody or control, notwithstanding the
fact that the child may have willingly participated in such
conduct, or the fact that the child may have consented to such
conduct or the fact that the child may have suffered no apparent
physical injury or mental or emotional injury as a result of such
conduct, then such parent, guardian, custodian or person in a
position of trust shall be guilty of a felony and, upon conviction
thereof, shall be imprisoned in the penitentiary not less than ten
nor more than twenty years, or fined not less than five hundred
nor more than five thousand dollars and imprisoned in the
penitentiary not less than ten years nor more than twenty years.
West Virginia Code § 61-8B-7, in part, provides:
(a) A person is guilty of sexual abuse in the first degree
(1) Such person subjects another person to sexual contact
without their consent, and the lack of consent results from
Rule 404(b) of the West Virginia Rules of Evidence provides:
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.
As previously discussed, in addition to B.S. and N.S., their younger sister, A.S., was
also named as a victim. However, prior to trial, the two counts of the indictment involving
A.S., were dismissed by the State.