State of West Virginia v. Carlos Angle , 233 W. Va. 555 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
June 5, 2014
No. 13-0574 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
CARLOS ANGLE,
Defendant Below, Petitioner
Appeal from the Circuit Court of Marion County
Honorable Fred L. Fox, II, Senior Status Judge
Criminal Action No. 09-F-83
REVERSED AND REMANDED
Submitted: April 8, 2014
Filed: June 5, 2014
Robyn M. Danford, Esq. Patrick Morrisey, Esq.
Whiteman Burdette, PLLC Attorney General
Fairmont, West Virginia Scott E. Johnson, Esq.
Attorney for Petitioner Senior Assistant Attorney General
Laura Young, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
AND
No. 13-0575
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
CARLOS ANGLE,
Defendant Below, Petitioner
Appeal from the Circuit Court of Marion County
Honorable Fred L. Fox, II, Senior Status Judge
Criminal Action No. 11-F-171
VACATED
Submitted: April 8, 2014
Filed: June 5, 2014
Eric K. Powell, Esq. Patrick Morrisey, Esq.
Powell Law Office Attorney General
Parkersburg, West Virginia Scott E. Johnson, Esq.
Attorney for Petitioner Senior Assistant Attorney General
Laura Young, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “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 court’s instruction.” Syl. Pt. 1, State v.
McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
2. “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
i
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
516 (1994).
3. “Where improper evidence of a nonconstitutional nature is introduced
by the State in a criminal trial, the test to determine if the error is harmless is: (1) the
inadmissible evidence must be removed from the State’s case and a determination made as
to whether the remaining evidence is sufficient to convince impartial minds of the
defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be
insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support
the conviction, an analysis must then be made to determine whether the error had any
prejudicial effect on the jury.” Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55(1979).
4. “A recidivist sentence under W.Va. Code § 61-11-19 (1943)
(Repl.Vol.2010) is automatically vacated whenever the underlying felony conviction is
vacated.” Syl. Pt. 3, Holcomb v. Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013).
ii
iii
Per Curiam:
The petitioner and defendant below, Carlos Angle, appeals the April 17, 2013,
final order of the Circuit Court of Marion County sentencing him to imprisonment in the
penitentiary for life. The petitioner’s sentence resulted from two separate convictions. He
was first found guilty by a jury of sexual abuse in the first degree on July 28, 2011.
Following that conviction, the State filed a recidivist information1 against the petitioner that
resulted in a second jury conviction pursuant to West Virginia Code § 61-11-19 (2010)2 on
1
The State alleged that the petitioner had been previously convicted of the felony
offense of extortion and two counts of the felony offense of unlawful wounding in addition
to his conviction of first degree sexual abuse.
2
West Virginia Code § 61-11-19 provides, in pertinent part:
It shall be the duty of the prosecuting attorney when he
has knowledge of former sentence or sentences to the
penitentiary of any person convicted of an offense punishable by
confinement in the penitentiary to give information thereof to
the court immediately upon conviction and before sentence.
Said court shall, before expiration of the term at which such
person was convicted, cause such person or prisoner to be
brought before it, and upon an information filed by the
prosecuting attorney, setting forth the records of conviction and
sentence, or convictions and sentences, as the case may be, and
alleging the identity of the prisoner with the person named in
each, shall require the prisoner to say whether he is the same
person or not. If he says he is not, or remains silent, his plea, or
the fact of his silence, shall be entered of record, and a jury shall
be impanelled to inquire whether the prisoner is the same person
mentioned in the several records. If the jury finds that he is not
the same person, he shall be sentenced upon the charge of which
he was convicted as provided by law; but if they find that he is
the same, or after being duly cautioned if he acknowledged in
open court that he is the same person, the court shall sentence
1
January 30, 2013. The petitioner appealed each conviction separately,3 but this Court
consolidated the appeals for purposes of argument and decision by order entered February
11, 2014.
Upon consideration of the parties’ briefs and oral argument, as well as the
submitted records and pertinent authorities, we find merit to the petitioner’s contention that
the circuit court committed reversible error during his first trial by allowing the admission
of certain evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence.4
him to such further confinement as is prescribed by section
eighteen [§ 61-11-18] of this article on a second or third
conviction as the case may be.
3
The petitioner was appointed counsel to appeal both of his convictions, but he
retained private counsel to assist with the appeal of his recidivist conviction, resulting in
separate appeals being filed with this Court.
4
Rule 404(b) of the West Virginia Rules of Evidence 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.
2
Accordingly, for the reasons set forth below, we reverse the petitioner’s conviction of sexual
abuse in the first degree and vacate his recidivist conviction.
I. Factual and Procedural Background
The petitioner’s conviction of sexual abuse in the first degree resulted from
events that occurred on October 30, 2008. At approximately 2:00 a.m. that day, the
petitioner and two other men went to the apartment of Kassandra Huffman and her boyfriend,
Larry Broadwater, in Fairmont, West Virginia. The petitioner was acquainted with Ms.
Huffman and her boyfriend because he had previously lived in the same neighborhood.
According to Ms. Huffman, the petitioner and the other men were drinking beer and were
already intoxicated. Another friend of Ms. Huffman and Mr. Broadwater, Josh
Dieffenbauch, arrived a short time later. Thereafter, the two men who had arrived with the
petitioner left the apartment. At some point, Mr. Broadwater told the petitioner that he also
needed to leave. Mr. Broadwater indicated that he needed to go to bed because he was
scheduled to work that morning. The petitioner and Mr. Dieffenbauch left the apartment at
the same time.
According to Mr. Dieffenbauch, before he parted ways with the petitioner, the
petitioner told him that he was going back to Ms. Huffman’s apartment to sleep on her couch.
Mr. Dieffenbauch then sent a text message to Ms. Huffman, telling her, “Don’t answer the
door. It’s Carlos.”
3
Ms. Huffman was asleep and did not hear Mr. Broadwater leave for work that
morning. At the petitioner’s trial, Ms. Huffman testified that when she woke up she realized
that someone was in her room. She then became aware that the petitioner was in her bed
with his shirt off, his pants around his knees and his penis between her legs. Ms. Huffman
testified that the petitioner had also pulled her underwear down around her knees. According
to Ms. Huffman, she leapt from the bed and ran into the bathroom saying, “Hey, man, what
are you going [sic]?” and “Get the f*** out of my house.” She locked herself in the
bathroom and did not come out until she heard the petitioner leave the apartment. She then
called Mr. Broadwater and 911.
Sergeant William Pigott of the Fairmont Police Department responded to the
911 call. After speaking with Ms. Huffman, Sergeant Pigott located the petitioner and
interviewed him.5 The petitioner confirmed that he had been at Ms. Huffman’s apartment,
stating that Ms. Huffman and Mr. Broadwater wanted to obtain drugs from him. The
petitioner denied using or possessing drugs. He stated that Ms. Huffman had offered to have
sex with him if he would obtain drugs for her. The petitioner admitted leaving the apartment,
and then returning, stating he believed Ms. Huffman had offered to have sex with him even
though she understood that he did not trade, sell or use drugs.
5
Officer Pigott testified that at the time of the interview, the petitioner had a blood
alcohol level of .141 according to a preliminary breath test, but he did not otherwise exhibit
symptoms of intoxication.
4
As a result of these events, the petitioner was indicted on one count of burglary
and one count of sexual assault in the second degree. Prior to the petitioner’s trial on these
charges, the State filed a notice of intent to use evidence pursuant to Rule 404(b) of the West
Virginia Rules of Evidence, seeking to present evidence that the petitioner had been
subsequently charged with sexual assault in the second degree, sexual abuse in the first
degree and conspiracy to commit a felony. These offenses were allegedly committed by the
petitioner in June 2009, while he was at a party in the neighborhood where Ms. Huffman
lived. The alleged victims were a female adult and a female juvenile. Following a hearing
on the matter, the trial court ruled that the evidence would be admissible at trial.
At trial, the State’s primary witness was Ms. Huffman. In addition, the State
presented the 404(b) evidence through the testimony of Officer Pigott who told the jury that
he had investigated allegations that the petitioner had sexually assaulted and/or abused a
female adult and a juvenile at a party in June 2009. Officer Pigott testified that he had
interviewed the petitioner with regard to these allegations and that the petitioner had stated
that any sexual contact he had with the adult victim had been consensual. While Officer
Pigott testified that there was also a juvenile victim, he never explained the basis for the
allegation.
After the State presented its case, the petitioner moved for a judgment of
acquittal. The court denied the motion with regard to the burglary charge, but granted, in
5
part, the motion with regard to the charge of sexual assault in the second degree, finding that
the jury could only consider the lesser included offense of first degree sexual abuse as the
State had failed to present evidence to establish the greater offense.6 Following deliberations,
the jury acquitted the petitioner of the burglary charge but found him guilty of sexual abuse
in the first degree.
Thereafter, the State filed a recidivist information against the petitioner and
obtained a jury conviction on January 30, 2013. At the petitioner’s sentencing hearing on
March 19, 2013, the court ordered that he be confined in the penitentiary for life pursuant to
West Virginia Code § 61-11-18(c) (2010).7 The final order was entered on April 17, 2013,
and these appeals followed.
6
Pursuant to West Virginia Code § 61-8B-4(a)(1) (2010), a person is guilty of sexual
assault in the second degree when “[s]uch person engages in sexual intercourse or sexual
intrusion with another person without the person’s consent, and the lack of consent results
from forcible compulsion.” Under West Virginia Code § 61-8B-7(a)(1) (2010), sexual abuse
in the first degree occurs when a “person subjects another person to sexual contact without
their consent, and the lack of consent results from forcible compulsion.” At trial, Ms.
Hoffman testified that when she woke up, she felt the petitioner’s penis between her legs.
During cross-examination she stated, “Well, I didn’t get raped. He didn’t penetrate my
vagina, in my vagina.”
7
West Virginia Code § 61-11-18(c) states:
“When it is determined, as provided in section nineteen
[§61-11-19] of this article, that such person shall have been
twice before convicted in the United States of a crime
punishable by confinement in a penitentiary, the person shall be
sentenced to be confined in the state correctional facility for
life.”
6
II. Standard of Review
The only assignment of error necessary for us to consider in these consolidated
appeals concerns the circuit court’s admission of evidence at the petitioner’s first trial
pursuant to Rule 404(b). This Court has explained that
[t]he standard of review for a trial court’s admission of
evidence pursuant to Rule 404(b) 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, 629-30 (1996). With these
standards in mind, we consider the parties’ arguments.
III. Discussion
The petitioner contends that the circuit court failed to make the requisite
findings necessary for a determination that the evidence offered by the State at his first trial
was admissible pursuant to Rule 404(b). This Court set forth the prerequisites for admission
of evidence under Rule 404(b) in State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994),
holding that
[w]hen 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
7
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 court’s instruction.
193 W.Va. at 151, 455 S.E.2d at 520, syl. pt. 1. In addition, this Court instructed in
McGinnis that
[w]here 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.
193 W.Va. at 151, 455 S.E.2d at 520, syl. pt. 2.
8
As set forth above, our review begins with an analysis of whether the trial court
committed clear error in determining that there was sufficient evidence to show that the other
acts occurred. There were two separate pieces of evidence offered by the State pursuant to
Rule 404(b): (1) that the petitioner sexually assaulted another adult female and (2) that the
petitioner sexually abused a juvenile.8 Although the offenses allegedly occurred on the same
night, and although the petitioner was charged for both offenses in the same indictment, each
piece of evidence should have been considered separately to determine whether there was
sufficient evidence that the petitioner committed each act. As noted, these other alleged acts
occurred subsequent to the alleged offenses in this case. Thus, while the petitioner had been
indicted, he had not been convicted of these other acts at the time of his trial in the case at
bar.
Upon review of the record, we are unable to locate any instance where the trial
court made a finding that the alleged other acts were committed by the petitioner. The 404(b)
hearing was held on July 26, 2011. At the end of the hearing, the trial court simply made a
conclusory statement, declaring, “The Court will allow the admission of the evidence. I think
it’s proper 404b evidence.” The trial court then instructed the State to prepare limiting
8
The petitioner was also charged with conspiracy in connection with these other
alleged offenses. Apparently, the adult victim reported that she had been sexually assaulted
by at least two men. The fact that the petitioner was also charged with conspiracy was not
submitted to the jury.
9
instructions to be given at trial regarding the 404(b) evidence and to also prepare an order
reflecting the court’s ruling. No order was ever entered.9
Even if we were to assume that the trial court implicitly found that the
petitioner committed the other alleged acts by ruling that the evidence was admissible, the
testimony presented at the 404(b) hearing did not support such a finding. The 404(b)
evidence was presented through the testimony of Officer Pigott. He testified that in June
2009, a female adult and a female juvenile each alleged that they had been sexually abused
and/or assaulted at a party in the same neighborhood where Ms. Huffman resided. Officer
Pigott stated that the petitioner and another male were named as persons of interest; that he
had interviewed the petitioner concerning the allegations; and that the petitioner had
maintained that any sexual contact he had with the adult female was consensual. Officer
Pigott further testified that the petitioner denied having sexual intercourse or any interaction
with the alleged juvenile victim and that “he didn’t press the issue further” during the
interview of the petitioner. Thus, the trial court was not presented with any specific evidence
with regard to the allegations made by the juvenile victim. Given these facts, we see no basis
for the trial court to have found by a preponderance of the evidence that the petitioner
committed these other acts.
9
The State acknowledges in its brief that no written order was entered following the
404(b) hearing.
10
While this Court recently found that evidence of a subsequent uncharged
offense was admissible pursuant to Rule 404(b) in State v. Bruffey, 231 W.Va. 502, 745
S.E.2d 540 (2013), the facts of that case are substantially different from the case at bar. In
Bruffey, the defendant was charged with a bank robbery, and the State introduced evidence
at his trial of a subsequent robbery the defendant was suspected of committing; no charges
had been filed against the defendant with respect to the second robbery. We found no error
in the admission of the evidence regarding the second uncharged bank robbery for the
purpose of showing a common plan, scheme and identity because there was substantial
forensic evidence linking the defendant to both crimes. Id. at —, 745 S.E.2d at 549. In this
case sub judice, however, there was not sufficient evidence for the trial court to have
concluded that the petitioner committed the subsequent alleged offenses. The State merely
put forth evidence that the petitioner had been accused of committing additional sexual
offenses, acknowledging that he denied the accusations.
In addition to failing to make the requisite finding that the alleged other acts
were committed by the petitioner, the trial court erred in concluding that the evidence was
presented for a legitimate purpose. At the 404(b) hearing, the State indicated that it was
offering the evidence to show the petitioner’s lustful disposition toward Ms. Huffman, as
well as intent, motive and absence of mistake. At trial, the court instructed the jury as
follows:
11
This evidence was admitted for the limited purpose of
explaining whether the defendant had motive, explain an
absence of mistake in [sic] apparent mode of operation, whether
the defendant exhibited the lustful disposition toward the alleged
victim, as well as in this instance, for which the defendant is on
trial.
As noted by the petitioner, it is well-established that “[i]t is impermissible for
collateral sexual offenses to be admitted into evidence solely to show a defendant’s improper
or lustful disposition toward his victim.” Syl. Pt. 7, State v. Dolin, 176 W.Va. 688, 347
S.E.2d 208 (1986). While this holding was modified by this Court in State v. Edward
Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990), to allow such evidence where the victim
is a child, the decision was not modified with respect to adult victims.10
Recognizing that the 404(b) evidence should not have been admitted to show
the petitioner’s lustful disposition toward the victim, the State argues that we should extend
10
Syllabus point two of State v. Edward Charles L. states:
Collateral acts or crimes may be introduced in cases
involving child sexual assault or sexual abuse victims to show
the perpetrator had a lustful disposition towards the victim, a
lustful disposition towards children generally, or a lustful
disposition to specific other children provided such evidence
relates to incidents reasonably close in time to the incident(s)
giving rise to the indictment. To the extent that this conflicts
with our decision in State v. Dolin, 176 W.Va. 688, 347 S.E.2d
208 (1986), it is overruled.
183 W.Va. at 643, 398 S.E.2d at 125.
12
our ruling in Edward Charles L. to adults, pointing out that such a ruling would be consistent
with federal law.11 We decline to do so, however, because as we explained in Dolin:
To recognize a sexual propensity exception in addition to
the numerous exceptions to the collateral crime rule would
provide a convenient path to damage a defendant’s character and
would sweep additional sexual offenses into evidence which
would obviously prejudice and confuse a jury in its
consideration of the crime charged in the indictment. What
renders the reasoning of those courts which have adopted a
sexual propensity exception so anomalous is their failure to
acknowledge that sexual crime cases are by their very nature
likely to be highly offensive to the average jury. Thus, the
ability to further prejudice the jury by admitting additional
collateral sexual offenses is even more apparent.
Bearing on this problem is the fact that the guilt of a
defendant in a sexual offense case can be based solely on the
uncorroborated testimony of the victim. We held in Syllabus
Point 5 of State v. Beck, 167 W.Va. 830, 286 S.E.2d 234, 31
A.L.R.4th 103 (1981), that the uncorroborated testimony of the
victim in a sexual offense case is sufficient to uphold a
conviction, unless the testimony is inherently incredible. See
also Syllabus Point 4, State v. Green, 163 W.Va. 681, 260
S.E.2d 257 (1979); State v. Golden, 90 W.Va. 496, 111 S.E.
320 (1922). For this reason, courts should be particularly wary
of collateral sexual offense evidence and should be cautious in
admitting such evidence.
176 W.Va. at 695, 347 S.E.2d at 215. Accordingly, we find that the trial court erred by
admitting the 404(b) evidence for the purpose of establishing the petitioner’s lustful
disposition toward Ms. Huffman.
11
See Fed. R. Evid. 413.
13
We further find that the trial court erred when it admitted the evidence to show
motive, absence of mistake, and mode of operation because the State failed to establish how
the evidence related to these specific purposes. In that regard, the State never attempted to
explain how evidence of subsequent criminal charges could establish a motive to commit the
offenses charged in the case at bar, which allegedly occurred nine months earlier. Other than
the obvious impermissible inference that one who committed a later sexual assault would
have probably been motivated to commit the earlier one, the State provided no evidence to
suggest how sexual offenses allegedly committed nine months later related to motive to
commit these offenses.
With regard to the purpose of absence of mistake, the State again failed to give
any explanation as to what mistake, precisely, it wished to dispute. The petitioner never
offered any type of defense that might have been construed as a “mistake.” The petitioner
did not testify at trial, nor did he present any other witnesses. During closing argument, his
counsel asserted that Ms. Huffman’s “story” was simply not credible.
Finally, it appears that the State attempted to utilize the 404(b) evidence for the
purpose of showing that the petitioner had a mode of operation. We have stated that “if the
[other act] evidence is offered to show intent, knowledge, or modus operandi, a showing of
similarity is usually necessary to demonstrate its probative value.” McGinnis, 193 W.Va. at
156, 455 S.E.2d at 525. The State was unable to make such a showing because the alleged
14
sexual offenses occurred under vastly different circumstances. The evidence at trial indicated
that Ms. Huffman was sober when the alleged offense occurred. She was home alone, and
the petitioner allegedly broke into her home and attempted to sexually assault her while she
slept. The victims of the subsequent alleged offenses were admittedly intoxicated. Further,
the alleged offenses were committed during a party. The only similarity between the alleged
offenses was that they occurred in the same neighborhood. Given these circumstances, the
circuit court erred in finding that the evidence was admissible to establish a mode of
operation.
The final step of our review concerns the trial court’s evaluation of the
evidence under Rule 403 of the West Virginia Rules of Evidence, which provides that
“[a]lthough relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” We have stated that when a trial court evaluates the admissibility of evidence
pursuant to Rule 404(b), “[t]he balancing necessary under Rule 403 must affirmatively
appear on the record.” McGinnis, 193 W.Va. at 156, 455 S.E.2d at 525. As previously
discussed, the trial court simply concluded at the end of the McGinnis hearing that the
evidence would be admissible under Rule 404(b). It is clear that no balancing test was ever
conducted.
15
Given all the above, we find that the trial court failed to conduct a thorough
analysis of the 404(b) evidence at issue as required by McGinnis, and erred in admitting at
trial the testimony concerning subsequent sexual offenses allegedly committed by the
petitioner. The State acknowledges that trial court failed to perform the Rule 403 balancing
test but argues that the admission of the 404(b) evidence was harmless error. We disagree.
This Court has held:
Where improper evidence of a nonconstitutional nature
is introduced by the State in a criminal trial, the test to determine
if the error is harmless is: (1) the inadmissible evidence must be
removed from the State’s case and a determination made as to
whether the remaining evidence is sufficient to convince
impartial minds of the defendant’s guilt beyond a reasonable
doubt; (2) if the remaining evidence is found to be insufficient,
the error is not harmless; (3) if the remaining evidence is
sufficient to support the conviction, an analysis must then be
made to determine whether the error had any prejudicial effect
on the jury.
Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). In McGinnis, we observed
“that Rule 404(b) determinations are among the most frequently appealed of all evidentiary
rulings and the erroneous admission of evidence of other acts is one of the largest causes of
reversal of criminal convictions.” 193 W.Va. at 153, 455 S.E.2d at 522. We further
recognized that “where a trial court erroneously admits Rule 404(b) evidence, prejudicial
error is likely to result.” Id.16
Because the State’s case rested solely upon the claims of Ms. Huffman and
because the evidence of the other alleged bad acts by the petitioner improperly bolstered her
testimony, we conclude that its admission had an unfairly prejudicial effect on the jury. The
likelihood of a conviction in this instance, without the introduction of other sexual offenses
allegedly committed by the petitioner, one of which was against a child, was considerably
less. Thus, we find that the improper admission of the 404(b) evidence was not harmless
error. Consequently, the petitioner’s conviction of sexual abuse in the first degree must be
reversed.
Because we have reversed the petitioner’s sexual abuse conviction, we must
vacate his recidivist conviction. As this Court explained in syllabus point 3 of Holcomb v.
Ballard, 232 W.Va. 253, 752 S.E.2d 284 (2013), “A recidivist sentence under W.Va. Code
§ 61-11-19 (1943) (Repl.Vol.2010) is automatically vacated whenever the underlying felony
conviction is vacated.”
IV. Conclusion
For the reasons set forth above, the petitioner’s conviction of first degree
sexual abuse is reversed, and the case is remanded to the circuit court for a new trial and
further proceedings consistent with this opinion. The petitioner’s recidivist conviction is
vacated.
No. 13-0574 - Reversed and remanded.
17
No. 13-0575 - Vacated.
18