State of West Virginia v. Rock ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia,
Plaintiff Below, Respondent FILED
March 23, 2021
vs.) No. 20-0056 (Harrison County 19-F-71-2) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Timothy Rock,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Timothy Rock, by counsel Michael B. Hissam, J. Zak Ritchie, and Max C.
Gottlieb, appeals the Circuit Court of Harrison County’s December 16, 2019, order sentencing
him to concurrent terms of not less than one nor more than ten years of incarceration for each of
his seventeen falsifying accounts convictions and to not less than one nor more than five years of
incarceration for his conspiracy conviction, which was ordered to be served consecutively to the
other sentences. Respondent the State of West Virginia, by counsel Mary Beth Niday, filed a
response. Petitioner filed a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
On January 8, 2019, petitioner and Deputy Steven Snyder were indicted on twenty-seven
counts of falsifying accounts and one count of conspiracy to commit a felony. Petitioner and
Deputy Snyder were both former deputies with the Harrison County Sheriff’s Office assigned to
that office’s Street Crimes and Drug (“SCAD”) Unit. In that capacity, they utilized confidential
informants (“CIs”) to make controlled purchases of drugs. Petitioner primarily managed the CIs.
The charges against petitioner and Deputy Snyder concerned their falsification of
vouchers documenting payments made during controlled drug buys in 2016, including payments
made to CIs in exchange for their assistance in making controlled drug buys. The officers were
required to complete vouchers documenting expenditures each day; however, the officers
frequently failed to timely complete and submit them, which necessitated meeting to complete
the vouchers in bulk for prior controlled drug buys. The officers both created new vouchers and
modified existing vouchers so that the sums reflected on the vouchers corresponded to the sums
1
obtained from the Harrison County Commission to make controlled drug buys, which allowed
the deputies to obscure the fact that government funds were unaccounted for from the SCAD
Unit’s buy account. It was alleged that the CIs did not receive the amounts reflected on the
vouchers. It was further alleged that petitioner provided the CIs heroin in exchange for their
service, in lieu of money.
Petitioner’s trial commenced on August 20, 2019. Various witnesses testified on the
State’s behalf, including other law enforcement officers and several of the CIs who worked for
petitioner. 1 Due to the posture of this case on appeal and the assignments of error raised,
however, an exhaustive recitation of the evidence introduced is unnecessary. Of relevance to the
issues on appeal, we note that petitioner objected at trial to evidence of his provision of drugs to
his CIs for their service. Petitioner argued that the evidence constituted Rule 404(b) evidence and
that its “prejudice clearly outweighs any probative value” under Rule 403. 2 The State explained
that the receipt of drugs was “exactly what made these vouchers false, . . . it’s not 404(b), it’s not
another event, it’s not a separate event, it’s not a separate act.” The court overruled petitioner’s
objection, finding that, “[w]ell, clearly it’s prejudicial. But the [c]ourt believes that it is part of
the Res gestae. . . . [I]t’s part and parcel of the again, the falsifying accounts.” 3
At the conclusion of petitioner’s trial, the jury found him guilty of seventeen counts of
falsifying accounts and one count of conspiracy. The jury acquitted him of the remaining ten
counts of falsifying accounts.
In addition to the investigation at the state level giving rise to petitioner’s state charges
and convictions, there was a federal investigation that culminated in a September 4, 2019, federal
indictment charging petitioner with four counts of distributing heroin. Ultimately, petitioner was
convicted of each of those four counts.
1
Five days before petitioner’s trial, his co-defendant Deputy Snyder entered into a plea
agreement with the State, under which he agreed to plead guilty to two counts of falsifying
accounts and one count of conspiracy. Deputy Snyder also agreed to testify at petitioner’s trial.
2
Rule 404(b) of the West Virginia Rules of Evidence prohibits the use of “[e]vidence of
a crime, wrong, or other act . . . to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” The Rule provides that such
evidence may be admissible for other enumerated purposes. See id. Rule 403 of the West
Virginia Rules of Evidence provides that “[t]he court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”
3
Petitioner also sought to “suppress” this evidence during a pre-trial hearing, but the
court denied his motion.
2
Petitioner filed motions for judgment of acquittal and a new trial (“post-trial motions”) in
the circuit court on September 9, 2019. 4 Although petitioner raised a number of grounds in his
post-trial motions in support of the relief sought, on appeal he continues to assign as error only
the court’s admission of the evidence that he supplied drugs to his CIs, which he maintained was
in violation of Rules 403 and 404 of the West Virginia Rules of Evidence.
On November 15, 2019, petitioner filed a “Supplemental Memorandum in Support of the
Post Trial Motions of the Defendant; Reply in Support of Post Trial Motions of the Defendant;
and, Motion to Continue Hearing Regarding Post Trial Motions and Sentencing” (“supplemental
post-trial motions”). Petitioner asserted that he was entitled to a new trial on all counts due to the
State’s failure to produce exculpatory evidence that “was discovered as a result of the federal
trial of the defendant ending on November 14, 2019.” Petitioner asserted that the federal action
“involves the same issues presented to the jury in the” instant action and that the Harrison
County Sheriff’s Office and the Federal Bureau of Investigation worked in tandem in
investigating petitioner. Petitioner further noted that three “significant” witnesses testified in
both the federal and state proceedings, namely, two CIs and Deputy Snyder. Petitioner stated
that, upon information and belief, an audio recording of a conversation between the two CIs
existed in which one CI advised the other that “they need to get their stories straight,” that the CI
“needed assurances that [the other CI] was on his team,” and that Deputy Snyder had informed
the CI that he and the other CI “could get millions in a lawsuit.” 5 But due to a protective order
that had been entered in the federal action, petitioner’s counsel did not possess, nor had he even
heard, the recording.
Petitioner listed additional audio recordings, video recordings, and messages that he
“believed to exist” but that were not produced. Aside from the supposed general content of the
phone call between the CIs, petitioner did not describe the expected significance of any other
piece of evidence he identified. In fact, petitioner acknowledged that “[b]ased upon the
protective order in the federal action it is unclear the extent to which the various information . . .
disclosed in the federal action [is] favorable, exculpatory or impeaching,” and he was
“preclude[d] . . . from articulating the materiality of each item.” Nevertheless, he argued that the
State was obligated to produce the evidence as impeachment or exculpatory evidence under
Brady v. Maryland, 373 U.S. 83 (1963), and State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402(1982). 6
4
Petitioner also filed motions for arrest of judgment and for stay of execution and relief
pending appellate review.
5
At least one CI filed a civil suit against petitioner and the Harrison County Sheriff’s
Office. Petitioner represents that the suit “has been resolved.”
6
In Brady, the Supreme Court of the United States held “that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. at 87. We held, in syllabus point 4 of Hatfield, that the suppression of
favorable evidence likewise violates the West Virginia Constitution: “A prosecution that
(continued . . .)
3
The parties appeared for a hearing on post-trial motions and sentencing on November 18,
2019. Petitioner argued his post-trial motions and supplemental post-trial motions but conceded
that he could not “tell the [c]ourt right now if [the identified evidence] would make a difference
because we haven’t had the opportunity to review it.”
In addressing petitioner’s claims, the court began by noting that petitioner’s supplemental
post-trial motions were “built upon speculation upon speculation upon speculation.” It also stated
that
the first hurdle that the [c]ourt would have to address is whether or not this state
police officer had access to all that information that’s believed to be in the
possession of the federal government. There’s no evidence that he did or—and
withheld that deliberately or even incidentally to these proceedings. And it seems
to me that given the fact that it’s truly speculative at this point, the [c]ourt
believes there is not sufficient evidence to justify continuing the posttrial practice
at this point and then if appropriate sentencing.
Finding that Brady and Hatfield were “not violated by the State under these circumstances and in
this case,” the court denied petitioner’s post-trial motions and supplemental post-trial motions.
The court then proceeded to sentence petitioner to not less than one nor more than ten years of
incarceration for each of petitioner’s seventeen falsifying accounts convictions, which were to be
served concurrently with one another, and to not less than one nor more than five years for
petitioner’s conspiracy conviction, which was ordered to be served consecutively to the other
sentences. The court entered its sentencing order memorializing these rulings on December 16,
2019. 7 It is from this order that petitioner appeals.
After filing his appeal with this Court, however, petitioner filed in the circuit court a
“Motion of the Defendant, Timothy Rock, for Rehearing and Reconsideration of the Denial of
the Motions [sic] Judgment of Acquittal; and for a New Trial” (“motion for reconsideration”) on
February 5, 2020. Petitioner explained that the federal court protective order had been modified
to allow him and his counsel access to and use of the information produced in the federal
criminal proceeding. Recognizing that the court had denied petitioner a new trial due, in part, to
the speculative nature of his supplemental post-trial motions raising the Brady/Hatfield issue,
withholds evidence which if made available would tend to exculpate an accused by creating a
reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the
West Virginia Constitution.” 169 W. Va. at 192, 286 S.E.2d at 404.
7
In its order, the court summarized its findings on the Brady/Hatfield issue by stating that
it “found that the evidence presented by the State was proper in relation to the offenses charged
in the indictment.” The court also “accepted the State’s representation that it had provided all
evidence in its possession to counsel for defendant and would not have had access to federal
grand jury records or additional evidence utilized in the federal prosecution that resulted in the
defendant’s conviction.”
4
petitioner attempted to expand upon that issue by listing twenty-seven pieces of evidence, the
withholding of which he claimed violated his right to due process under Brady and Hatfield. But
the items were listed without accompanying argument or other explanation as to the evidence’s
favorability or materiality, although he did “incorporate[] . . . the legal authority contained within
the prior motion.”
The State’s response highlighted the “blanket assertions” made by petitioner and the
absence of any explanation of the exculpatory nature of the identified documents. “Without such
a showing,” the State said, “there exists no specific support for the assertion that the defendant
should be granted a rehearing” on petitioner’s previously denied post-trial motions and
supplemental post-trial motions.
On February 11, 2020, petitioner filed a “Consolidated Reply of the Defendant, Timothy
Rock, in Support of the Motion of the Defendant to Extend Stay of Execution and Continue Post-
Conviction Bail and Motion of the Defendant for Rehearing and Reconsideration of the Denial of
Motions for Judgment of Acquittal and for a New Trial” (“consolidated reply”). In his
consolidated reply, petitioner offered some explanation of the claimed impeachment or
exculpatory value of the allegedly withheld evidence. For example, petitioner stated that
statements made by one of his CIs during a recorded interview do not match the statements
attributed to the CI in a written report documenting that interview. Petitioner also identified a
memorandum naming another “potential witness” who possessed an “audio file regarding the
recording between” the two CIs. Other documents identified by petitioner purportedly
established a “lack of any chain of custody” for certain evidence described during his trial, and
he again referenced the taped telephone call between two CIs. Petitioner concluded that “[t]he
foregoing highlight[s] the significant violations of the obligations of the prosecution to produce
Brady material which undermined the constitutional rights of the defendant. Without question,
this information was known to the prosecution and should have been produced.”
The court denied petitioner’s motion for reconsideration on February 12, 2020, finding
that petitioner’s motion “fails to advance any particular relevancy argument on [his] behalf,” that
the motion
makes no specific identification or citation to trial transcript records connecting
the referenced [e]xhibits from his federal criminal proceedings to proceedings
herein that he believes reflect contradictory statements or inconsistencies to such
extent that would rise to the level of Brady violations and the denial of his due
process in his state criminal proceedings,
and that petitioner “does not substantively support his assertion that he should be granted a
rehearing on his previously denied motions.” 8
8
The court also admonished petitioner for filing a reply when one “was neither
authorized nor contemplated by” the court’s briefing schedule and because it was “no[t] so much
in response to any ‘newly raised matters’ by the State in its [r]esponse as it [was] a supplemental
(continued . . .)
5
Nevertheless, the court conducted an in-camera review of the exhibits and “detected
nothing contained therein to be of any exculpatory nature.[9] In actuality, such review revealed
information and matters that this Court deemed as being inculpatory in nature.” The court
concluded that petitioner’s motion was “facially deficient and lacking any substantive merit or
controlling authority upon which his requested relief should be granted.”
In his appeal to this Court, petitioner raises two assignments of error related to the circuit
court’s denial of his motion for a new trial. In his first, he argues that the circuit court erred in
denying his motion due to the State’s failure to produce all material exculpatory and
impeachment evidence of which it was aware, in violation of Brady and Hatfield. In his second
assignment of error, petitioner argues that the circuit court erred in concluding that his supplying
drugs to the CIs was part of the res gestae. Petitioner claims that this evidence should have been
evaluated under Rule 404(b) of the West Virginia Rules of Evidence, and he also argues that
Rule 403 precluded its admission.
In reviewing challenges to findings and rulings made by a circuit court, we
apply a two-pronged deferential standard of review. We review the rulings of the
circuit court concerning a new trial and its conclusion as to the existence of
reversible error under an abuse of discretion standard, and we review the circuit
court’s underlying factual findings under a clearly erroneous standard. Questions
of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000).
Before delving into the particulars of petitioner’s arguments, we must outline the scope of
our review of petitioner’s assignments of error. Petitioner raises arguments on appeal that he did
not raise below. In particular, petitioner argues on appeal that certain evidence was withheld in
violation of Brady/Hatfield that he did not identify below as violative of Brady/Hatfield.
Conversely, petitioner no longer takes issue with much of the evidence that he claimed below
violated Brady/Hatfield. 10 As we have repeatedly reminded litigants, “[t]his Court’s general rule
is that nonjurisdictional questions not raised at the circuit court level will not be considered [for]
the first time on appeal.” State v. Jessie, 225 W. Va. 21, 27, 689 S.E.2d 21, 27 (2009) (citation
omitted). “It must be emphasized that the contours for appeal are shaped at the circuit court level
by setting forth with particularity and at the appropriate time the legal ground upon which the
memorandum to his original [m]otion . . . containing argument and legal authority that should
have been put forth [initially].”
9
The court was unable to review the exhibits provided on an electronic storage device,
though, which included the telephone call between the CIs. The court stated that upon attempting
to access the files on the storage device, it was alerted that the “device contained potentially
harmful information and/or was not allowed further access due to online and computer security.”
10
Petitioner has obtained new counsel to prosecute his appeal.
6
parties intend to rely.” State v. Trail, 236 W. Va. 167, 185, 778 S.E.2d 616, 634 (2015) (citation
omitted).
More problematic, however, is the fact that petitioner raises issues related to the evidence
obtained from the federal court proceeding, and he challenges the circuit court’s rulings on his
motion for reconsideration, which was predicated on that evidence. Petitioner filed his appeal
from the circuit court’s sentencing order with this Court in January of 2020. From the point of
filing forward, the circuit court was without jurisdiction in petitioner’s case, including over the
issues raised in his motion for reconsideration and consolidated reply. “Once this Court takes
jurisdiction of a matter pending before a circuit court, the circuit court is without jurisdiction to
enter further orders in the matter except by specific leave of this Court.” Syl. Pt. 3, Fenton v.
Miller, 182 W. Va. 731, 391 S.E.2d 744 (1990); see also Luborsky v. Carroll, Nos. 15-0787 &
16-0329, 2017 WL 1293991, *4 n.9 (W. Va. Apr. 5, 2017)(memorandum decision)
(“Procedurally, we note that, because this Court docketed Mr. Luborsky’s appeal of the July 15,
2015, order, no further proceedings should have occurred in this matter below without leave of
this Court. . . . Thus, we remind the bench and bar that, in general, circuit courts lack jurisdiction
to issue rulings while a proper appeal is pending before this Court.”). Because the circuit court
lacked jurisdiction to consider petitioner’s motion for reconsideration and consolidated reply, its
rulings on the issues raised in those filings are void and not properly before this Court for review.
See State ex rel. Universal Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 346, 801 S.E.2d
216, 224 (2017) (“[T]he urgency of addressing problems regarding subject-matter jurisdiction
cannot be understated because any decree made by a court lacking jurisdiction is void.”).
Accordingly, this Court may address the propriety of the circuit court’s denial of a new trial
based on allegedly withheld evidence, but we may only consider that issue as it was presented to
and ruled upon by the circuit court in petitioner’s post-trial motions and supplemental post-trial
motions, i.e., before the circuit court was divested of jurisdiction.
After appropriately narrowing the scope of his appeal, the arguments raised by petitioner
that can be considered by this Court concerning the Brady/Hatfield issue include his claim that
the court erroneously applied an “access” standard in concluding that no Brady/Hatfield violation
had been established. Petitioner also challenges the court’s findings that the evidence’s effect
was speculative, and he claims that the court improperly limited its assessment to only state law
enforcement officers.
To have established a due process violation under Brady and Hatfield, petitioner needed
to have shown three things: “(1) the evidence at issue must be favorable to the defendant as
exculpatory or impeachment evidence; (2) the evidence must have been suppressed by the State,
either willfully or inadvertently; and (3) the evidence must have been material, i.e., it must have
prejudiced the defense at trial.” Syl. Pt. 2, in part, State v. Youngblood, 221 W. Va. 20, 650
S.E.2d 119 (2007). In addressing this third component, we have said that “evidence is material
only if there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Id. at 32, 650 S.E.2d at 131 (citation
omitted).
7
We find no error in the circuit court’s ruling that petitioner failed to demonstrate that he
was entitled to a new trial under Brady and Hatfield. Simply put, petitioner failed to so much as
minimally address his supposed entitlement to a new trial for the alleged Brady/Hatfield
violation, let alone meet his burden of establishing one. 11 Petitioner offered only the blanket
assertion that the identified evidence was favorable as exculpatory or impeachment evidence, but
he failed to explain how, and he further failed to explain how the identified evidence prejudiced
his defense at trial. Indeed, petitioner acknowledged in his supplemental post-trial motions and at
the hearing on those motions that he could not meet his burden, conceding that he did not know
whether the evidence was favorable and could not articulate its materiality. Because petitioner’s
merely speculative and undeveloped bases offered in support of the claimed Brady/Hatfield
violation did not establish such a violation, he was not entitled to a new trial on this ground. See
State v. Harris, 226 W. Va. 471, 476, 702 S.E.2d 603, 608 (2010) (“[A] skeletal ‘argument,’
really nothing more than an assertion, does not preserve a claim. . . . Judges are not like pigs,
hunting for truffles buried in briefs.”) (citation omitted).
In support of his second assignment of error, concerning the evidence that he supplied
drugs to his CIs, petitioner argues that the circuit court “misinterpret[ed] the legal bounds” of res
gestae by failing to assess whether the evidence was “reasonably necessary” for explaining the
falsifying accounts charges. See Syl. Pt. 1, State v. Spicer, 162 W. Va. 127, 245 S.E.2d 922(1978) (“Other criminal act evidence admissible as part of the res gestae or same transaction
introduced for the purpose of explaining the crime charged must be confined to that which is
reasonably necessary to accomplish such purpose.”). Petitioner argues that all that was
reasonably necessary to explain these charges was the testimony from the CIs that they did not
receive the amount reflected on the vouchers. Whether they received drugs “is logically not
necessary to the assessment of whether the cash was paid or not,” petitioner contends. Because
this evidence was not reasonably necessary to explain the charges, petitioner asserts it was not
res gestae. Therefore, petitioner argues, the circuit court erred in not following the necessary
procedures for admitting evidence under Rule 404(b) of the West Virginia Rules of Evidence set
forth in Syllabus Point 2 of State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
Petitioner also argues that the evidence’s minimal probative value was substantially outweighed
by its prejudicial value because the State was permitted to portray petitioner “as a ‘dirty cop’
who gave drugs to addicts.” For that reason, he argues that the evidence should have been
excluded under Rule 403 of the West Virginia Rules of Evidence.
Our review of this assignment of error is for an abuse of discretion. See Syl. Pt. 3, State v.
Harris, 230 W. Va. 717, 742 S.E.2d 133 (2013) (“A trial court’s evidentiary rulings, as well as
11
To the extent the circuit court’s finding that petitioner’s supplemental post-trial
motions were “built upon speculation upon speculation upon speculation” does not amount to a
ruling that petitioner failed to meet his burden, we reiterate that “[t]his Court may, on appeal,
affirm the judgment of the lower court when it appears that such judgment is correct on any legal
ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower
court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d
466 (1965).
8
its application of the Rules of Evidence, are subject to review under an abuse of discretion
standard.”) (citation omitted).
We have explained that “‘[o]ther act’ evidence is ‘intrinsic’ when the evidence of the
other act and the evidence of the crime charged are ‘inextricably intertwined’ or both acts are
part of a ‘single criminal episode’ or the other acts were ‘necessary preliminaries’ to the crime
charged.” Id. at 721, 742 S.E.2d at 137 (citation omitted). Further,
[o]ne of the accepted bases for the admissibility of evidence of other crimes arises
when such evidence “furnishes part of the context of the crime” or is necessary to
a “full presentation” of the case, or is so intimately connected with and
explanatory of the crime charged against the defendant and is so much a part of
the setting of the case and its “environment” that its proof is appropriate in order
“to complete the story of the crime on trial by proving its immediate context or
the ‘res gestae’” or the “uncharged offense is ‘so linked together in point of time
and circumstances with the crime charged that one cannot be fully shown without
proving the other . . . ’ (and is thus) part of the res gestae of the crime charged.”
And where evidence is admissible to provide this “full presentation” of the
offense, “(t)here is no reason to fragmentize the event under inquiry” by
suppressing parts of the “res gestae.” . . . “(T)he jury is entitled to know the
‘setting’ of a case. It cannot be expected to make its decision in a void without
knowledge of the time, place and circumstances of the acts which form the basis
of the charge.”
Id. at 721-22, 742 S.E.2d at 137-38 (citations omitted). But “[o]ther criminal act evidence
admissible as part of the res gestae or same transaction introduced for the purpose of explaining
the crime charged must be confined to that which is reasonably necessary to accomplish such
purpose.” Spicer, 162 W. Va. at 127-28, 245 S.E.2d at 924, syl. pt. 1.
The circuit court correctly determined that the evidence that petitioner paid his CIs in
drugs was intrinsic to the crimes charged. The vouchers were false partly because petitioner paid
the CIs in drugs rather than the cash amounts reflected on the vouchers. In other words,
petitioner’s payment in drugs was inextricably intertwined with and explanatory of his
falsification of the vouchers. The evidence likewise furnished the context for the crime.
We further find that the admission of this evidence does not run afoul of our
pronouncements in Spicer. In Spicer, the defendant was charged only with armed robbery
following his alleged abduction at knifepoint and rape of his victim, during which he took $3
from the victim’s purse. 162 W. Va. at 128, 245 S.E.2d at 924. At trial, which resulted in the
defendant’s conviction, the circuit court permitted the State to admit evidence from doctors who
confirmed that the victim had engaged in intercourse within the time period of the alleged, but
uncharged, rape. Id. at 130-31, 245 S.E.2d at 925. On appeal, we found that the doctors’
testimony went too far, that it should not have been admitted, and that “the prosecutor conducted
the trial from beginning to end as if it were a trial for rape.” Id. at 133, 245 S.E.2d at 926.
Against this backdrop, we held that “the prosecution was not at liberty to introduce other crime
evidence beyond that necessary to explain or prove the crime charged in the indictment.” Id.9
To be clear, we recognized that in proving the crime charged “other offenses may come
to light incidentally.” Id. at 133, 245 S.E.2d at 927. The problem arises, though, “when the
prosecution devotes excessive trial time to this type of ‘background’ material[;] it runs the risk of
trespassing into the impermissible area and jeopardizing any resulting conviction.” Id. at 133-34,
245 S.E.2d at 927. The rape evidence in Spicer “was admitted indiscriminately, took up much of
the trial time, and created a substantial danger of prejudice. This combined with the remarks of
the prosecution, particularly in closing argument, was prejudicial and denied him the
fundamental right of a fair trial.” Id. at 134, 245 S.E.2d at 927.
Petitioner does not argue that evidence of his payment to his CIs in drugs dominated the
trial, and our review of the trial transcript reveals that such was not the case. Rather, only that
evidence reasonably necessary to explain how petitioner falsified the vouchers and prove that he
did falsify the vouchers was introduced. And because this evidence was properly admitted as
intrinsic to the crime charged, it does not fall within the purview of Rule 404(b), and the circuit
court did not need to comply with the procedures for determining its admissibility set forth in
McGinnis. See Harris, 230 W. Va. at 722, 742 S.E.2d at 138 (“This Court has consistently held
that evidence which is ‘intrinsic’ to the indicted charge is not governed by Rule 404(b).”)
(citation omitted).
Petitioner’s challenge to the evidence under Rule 403 is likewise without merit. Rule 403
provides that “[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Rule 403 seeks to guard against “jury misuse of the evidence.” State v. Guthrie, 194 W. Va. 657,
683, 461 S.E.2d 163, 189 (1995).
The mission of Rule 403 is to eliminate the obvious instance in which a jury will
convict because its passions are aroused rather than motivated by the persuasive
force of the probative evidence. Stated another way, the concern is with any
pronounced tendency of evidence to lead the jury, often for emotional reasons, to
desire to convict a defendant for reasons other than the defendant’s guilt.
Id. at 682-83, 461 S.E.2d at 188-89.
In conducting the balancing required under this rule, a trial court “enjoys broad
discretion.” Syl. Pt. 4, in part, State v. McDaniel, 238 W. Va. 61, 792 S.E.2d 72 (2016) (citation
omitted). “The Rule 403 balancing test is essentially a matter of trial conduct, and the trial
court’s discretion will not be overturned absent a showing a clear abuse.” Id. (citation omitted).
The circuit court did not clearly abuse its discretion in conducing the balancing required
by Rule 403. “[T]o be probative, evidence must be ‘relevant’ under Rule 401, that is, it must tend
to make an issue in the case more or less likely than would be so without the evidence.” Guthrie,
194 W. Va. at 681, 461 S.E.2d at 187. Here, the evidence was clearly relevant in that evidence
that the CIs were paid in drugs rather than cash tended to make it more likely that the vouchers,
reflecting cash payments, were false. Further, this probative value was not substantially
outweighed by a danger of unfair prejudice because admission of the evidence did not present an
10
opportunity for the jury to convict petitioner for reasons other than his guilt. To the contrary, the
evidence bore directly on his guilt.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: March 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
NOT PARTICIPATING:
Justice Tim Armstead
11