State of West Virginia v. Larry A. H.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
_____________ FILED
April 11, 2013
No. 11-1357 released at 3:00 p.m.
_____________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent
V.
LARRY A. H.,
Petitioner
____________________________________________________________________
Appeal from the Circuit Court of Mercer County
Honorable Derek C. Swope, Judge
Criminal Action No. 03-F-277
AFFIRMED
____________________________________________________________________
Submitted: March 27, 2013
Filed: April 11, 2013
Duane C. Rosenlieb, Jr. Patrick Morrissey
Richard H. Lorensen Attorney General
Public Defender Services Laura Young
Charleston, West Virginia Assistant Attorney General
Attorneys for Petitioner Charleston, West Virginia
Attorneys for Respondent
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “An indictment may be amended by the circuit court, provided the
amendment is not substantial, is sufficiently definite and certain, does not take the defendant
by surprise, and any evidence the defendant had before the amendment is equally available
after the amendment.” Syllabus point 2, in part, State v. Adams, 193 W. Va. 277, 456 S.E.2d
4 (1995).
2. “A variance in the pleading and the proof with regard to the time of the
commission of a crime does not constitute prejudicial error where time is not of the essence
of the crime charged.” Syllabus point 4, State v. Chaffin, 156 W. Va. 264, 192 S.E.2d 728(1972).
3. “The traditional appellate standard for determining prejudice for
discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure
involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a
material fact, and (2) did it hamper the preparation and presentation of the defendant’s case.”
Syllabus point 2, State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994).
i
Per Curiam:
This is an appeal by Larry A. H. (“Mr. H.”)1 from an order of the Circuit Court
of Mercer County resentencing him2 after his convictions for felony and misdemeanor sexual
offenses.3 Mr. H. contends the trial court committed error by (1) allowing the indictment to
be amended; (2) allowing the State to call a witness that was not named on the witness list;
and (3) allowing the State to recall a witness. After a careful review of the briefs, the record
submitted on appeal, and listening to the arguments of the parties, we affirm.4
1
We follow our general practice of using initials only in cases involving
sensitive facts. See State v. Lowery, 222 W.Va. 284, 286 n.1, 664 S.E.2d 169, 171 n.1 (2008)
(“Due to the sensitive nature of the facts involved in this case, we will adhere to our usual
practice in such matters and refer to initials only.”).
2
Mr. H. was resentenced for appeal purposes.
3
Mr. H. was convicted of (1) twelve counts of sexual assault in the third degree
and given a suspended sentence of one to five years for each offense; (2) one count of sexual
abuse by a custodian and sentenced to ten to twenty years imprisonment; (3) two counts of
incest with a sentence of five to fifteen years imprisonment for each conviction, but with one
sentence suspended; and (4) two misdemeanor counts of sexual abuse in the second degree,
with a sentence of twelve months incarceration for each offense. The trial court ordered the
active incest and sexual abuse by a custodian sentences to run consecutively; but the
misdemeanor sentences were ordered to run concurrently with the active felony sentences.
In sum, Mr. H. was ordered to serve an aggregate sentence of fifteen to thirty-five years
imprisonment.
4
While this case was pending, Attorney General Patrick Morrissey was sworn
in and replaced former Attorney General Darrell V. McGraw, Jr. See W. Va. R. App. P.
41(c) (“When a public officer is a party to an appeal or other proceeding in the Supreme
Court in his official capacity and during its pendency . . . ceases to hold office, the action
does not abate and his successor is automatically substituted as a party.”).
1
I.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2003, a Mercer County grand jury indicted Mr. H.5 on thirty
counts of sexual assault offenses.6 The victim of the offenses was Mr. H.’s daughter. The
offenses covered a period from 2001 to 2003. The case went to trial on August 31, 2004.
During the trial, the State called four witnesses: Dr. William Elliott, Dr.
Charles B. Yeargan, play therapist Phyllis Hasty, and the victim. Dr. Elliott was a physician
who examined the victim on April 15, 2003, at the request of the Department of Health and
Human Resources (“DHHR”). Dr. Elliot testified that, although the victim did not have any
physical signs of sexual assault, the victim did tell him that Mr. H. placed his penis on her
breasts and touched her genital area. Dr. Yeargan, a psychologist, evaluated the victim
pursuant to a court order. Dr. Yeargan described the victim as “an eight-year-old child
intellectually in the body of an adult.”7 Ms. Hasty testified that the victim informed her that
Mr. H. sexually assaulted her on many occasions. Ms. Hasty stated that because the victim
5
The indictment also named a co-defendant. The record does not disclose the
resolution of the charges against the co-defendant.
6
The appendix is extremely limited in recounting the factual development of
this case.
7
The victim was twenty years old at the time of the trial.
2
was moderately mentally impaired,8 and behaved like a child of five to six years of age, she
did not have the ability to say no to Mr. H. The victim testified that when she was sixteen
years old, Mr. H. began sexually assaulting her. The victim testified in graphic details that
Mr. H. engaged in oral, anal and vaginal sex with her on a frequent basis.9
Mr. H. did not testify at the trial. However, he did call three witnesses during
his case-in-chief. The first witness called by Mr. H. was Cynthia Snuffer, a DHHR Child
Protective Services worker. Ms. Snuffer was called primarily to give testimony which
indicated that, when she conducted an in-home interview of the victim, the victim stated
forty-three times that Mr. H. did not sexually assault her. The next two witnesses called by
Mr. H. were two of the victim’s younger siblings. Neither sibling was asked whether they
ever saw Mr. H. engage in improper conduct with the victim. However, one sibling was
asked if Mr. H. ever touched the sibling’s breast, as alleged by the victim, but the sibling
denied being touched on her breast by Mr. H.
At the close of Mr. H.’s case-in-chief, the trial court instructed the jury on the
law and provided the jury with a verdict form that contained only seventeen of the thirty
8
Ms. Hasty testified that the victim had two different IQ tests performed. One
test gave her a full scale IQ of 46, while the other IQ result was 53.
9
Because the victim was mentally challenged, she was not able to testify to
exact dates.
3
counts in the indictment.10 On September 1, 2004, the jury returned a verdict finding Mr. H.
guilty of all seventeen counts listed on the verdict form. For reasons that are not disclosed
in the appendix record, an appeal was not filed until after Mr. H. was resentenced in August
2011.
II.
DISCUSSION11
On appeal to this Court, Mr. H. argues that the trial court erred by (1) allowing
the indictment to be amended; (2) allowing the State to call a witness that was not named on
the witness list; and (3) allowing the state to recall a witness. We will consider each of these
assigned errors in turn.
A. Amending the Indictment
The first issue raised by Mr. H. is that the trial court committed reversible error
in allowing the indictment to be amended.12 We have recognized that a trial court’s decision
10
The remaining counts were dismissed by the court.
11
Ordinarily we would set out a general standard of review. However, the
issues presented by Mr. H. require the application of issue-specific review standards. Thus,
the proper standard for our review of each issue will be set out in our discussion thereof.
12
Mr. H. mentions that it was during the trial that the court, sua sponte, raised
the issue of amending the indictment. However, Mr. H. has not briefed, as an assignment of
error, the issue of the court raising the matter sua sponte. See Covington v. Smith, 213
W. Va. 309, 317 n.8, 582 S.E.2d 756, 764 n.8 (2003) (stating that casual mention of an issue
(continued...)
4
to allow an amendment to an indictment is reviewed for an abuse of discretion. State v.
Adams, 193 W. Va. 277, 283, 456 S.E.2d 4, 10 (1995). See also Blane v. Commonwealth,
364 S.W.3d 140, 150 (Ky. 2012) (“[W]e review the trial court’s decision to permit
amendment of the indictment for abuse of discretion.”); State v. Profit, 591 N.W.2d 451, 466
(Minn. 1999) (“We review amendments at trial of an indictment for an abuse of
discretion[.]”); State v. Beach, 772 N.E.2d 677, 682 (Ohio Ct. App. 2002) (“We review a trial
court’s decision to permit the amendment of an indictment under an abuse-of-discretion
standard.”). To constitute reversible error, Mr. H. must show not only that the trial court
abused its discretion, but also that the amendment prejudiced his defense. See Adams, 193
W. Va. at 283, 456 S.E.2d at 10 (“Unless a defendant can demonstrate prejudice, a circuit
court may amend an indictment in a manner that does not strike any substantive portion of
the charging paragraph and does not change the offense charged.”).
The amendment to the indictment in this case involved replacing the
indictment’s use of the phrase “on or about” with the word “between.” This occurred when
the court held a hearing on jury instructions. During the hearing, Mr. H. contended that the
phrase “on or about” should be interpreted as meaning each offense occurred on specific
dates set out in the indictment. For example, count two of the indictment charged that sexual
12
(...continued)
in a brief is insufficient to preserve the issue on appeal).
5
assault occurred “on or about” February 24, 2001, and February 23, 2002. Mr. H.’s position
was that the State had to prove that the offense occurred on both of those two dates. The
State argued that the phrase should be interpreted as meaning that one offense occurred
“between” the two dates listed. The trial court agreed with the State and found that the use
of the word “between” more accurately reflected the evidence.13 Consequently, the court
granted the State’s motion to amend the indictment to replace the phrase “on or about” with
the word “between.” Mr. H. now states that he was prejudiced by this amendment. We
disagree.
Syllabus point 2, in part, of Adams, held that:
An indictment may be amended by the circuit court,
provided the amendment is not substantial, is sufficiently
13
The court also stated that the phrase “on or about” was “just a typo. It makes
no sense any other way[.]” See State v. Haden, 213 W.Va. 285, 288, 582 S.E.2d 732, 735
(2003) (“We also agree with the determination made in the trial court’s order denying the
motion for a new trial, wherein the court found that ‘the change of date on the Indictment
was merely to correct a typographical error[.]’”). The circuit court correctly reasoned that
it made “no sense” to interpret the indictment in the manner argued by Mr. H., because to do
so would mean the grand jury impermissibly set out two offenses in each of the thirty counts
in the indictment. See W. Va. R. Crim. P., 8(a)(2) (“If two or more offenses are known . . .
to the attorney for the state . . . and were committed within the same county having
jurisdiction and venue of the offenses, all such offenses . . . shall be prosecuted by separate
counts[.]”); State v. Clements, 175 W. Va. 463, 470, 334 S.E.2d 600, 608 (1985) (“All
offenses based on the same act or acts constituting part of a common scheme or plan must
be charged in the same indictment . . . in a separate count for each offense[.]”); Syl. pt. 1,
State ex rel. Watson v. Ferguson, 166 W. Va. 337, 274 S.E.2d 440 (1980), as stated in State
v. Johnson, 197 W. Va. 575, 476 S.E.2d 522 (1996). Superseded by rule (“A defendant shall
be charged in the same indictment, in a separate count for each offense[.]”).
6
definite and certain, does not take the defendant by surprise, and
any evidence the defendant had before the amendment is equally
available after the amendment.
193 W. Va. 277, 456 S.E.2d 4. The amendment in this case was not “substantial.” It merely
clarified the time period in which the offenses occurred. See W. Va. Code § 62-2-10 (1923)
(2010 Repl. Vol.) (“No indictment . . . shall be . . . deemed invalid for . . . stating
imperfectly[] the time at which the offense was committed, when time is not of the essence
of the offense”). We have made clear that “[a] variance in the pleading and the proof with
regard to the time of the commission of a crime does not constitute prejudicial error where
time is not of the essence of the crime charged.” Syl. pt. 4, State v. Chaffin, 156 W. Va. 264,
192 S.E.2d 728 (1972). Specifically, we have explained that “[b]ecause time is not an
element of the crime of sexual assault, the alleged variances concerning when the assaults
occurred [do] not alter the substance of the charges against the defendant.” State v. Miller,
195 W. Va. 656, 663, 466 S.E.2d 507, 514 (1995).
Although Mr. H. has set out in his brief that he was prejudiced by the
amendment, he has failed to articulate how he was prejudiced. The circuit court’s
amendment did not involve an element of an offense charged. The amendment involved a
mere clarification of when the sexual assault offenses occurred. See State v. St. Pierre, 693
A.2d 1137, 1141 (Me. 1997) (“Time is not an element of unlawful sexual contact; thus, the
State was under no obligation to prove that the sexual contact occurred on the specific dates
7
listed in the indictment.”); Jordan v. State, 80 So. 3d 817, 827 (Miss. Ct. App. 2010) (“Time
is not an essential element of the crimes of sexual battery, gratification of lust, and child
abuse. Therefore, the amendment was one of form; thus, it was allowable.”); State v. Brim,
789 N.W.2d 80, 84 (S.D. 2010) (“Although an indictment should be as specific as possible,
time is not a material element of crimes involving sexual abuse of minors. Therefore, the
fact [that] a crime was committed on a date different from the one alleged in the indictment
is not fatal to the charge.”). Most importantly, Mr. H.’s defense was simply that he did not
commit the crimes. This defense could have been presented regardless of what dates were
alleged in the indictment. See Jackson v. Commonwealth, No. 2011-000008-MR, 2012 WL
3637159, at *3 (Ky. Aug. 23, 2012) (“[W]hen a defendant testifies that sexual abuse never
occurred, no prejudice accrues to the defendant when an indictment is amended to change
the time of the offense without charging additional offenses[.]”); State v. Riffe, 661 S.E.2d
899, 905 (N.C. Ct. App. 2008) (“In cases in which time is not an essential element of the
crime and an alibi defense has not been presented, it has been held that an amendment as to
the date of the offense is not material.”). Therefore, we find that Mr. H. was not prejudiced
by the amendment to the indictment.
B. Calling a Witness That Was Not Named on the Witness List
Mr. H. next asserts that he filed a discovery request with the State seeking the
names of all witnesses the State intended to call during the trial. The State responded to the
8
request by listing its intended witnesses.14 However, the State did not list Dr. Yeargan as a
witness. Even so, at the start of the trial, the State indicated that it would call Dr. Yeargan
as a witness. Mr. H. objected, but the trial court allowed the State to call Dr. Yeargan as a
witness. Here, Mr. H. contends the trial court committed error in allowing Dr. Yeargan to
testify.
This Court has held that “[t]he action of a trial court in admitting or excluding
evidence in the exercise of its discretion will not be disturbed by the appellate court unless
it appears that such action amounts to an abuse of discretion.” Syl. pt. 10, State v. Huffman,
141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v.
Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994). With respect to a violation of a defendant’s
right to discovery, this Court stated in Syllabus point 2 of State ex rel. Rusen v. Hill, 193
W. Va. 133, 454 S.E.2d 427 (1994):
The traditional appellate standard for determining
prejudice for discovery violations under Rule 16 of the West
Virginia Rules of Criminal Procedure involves a two-pronged
analysis: (1) did the non-disclosure surprise the defendant on a
material fact, and (2) did it hamper the preparation and
presentation of the defendant’s case.”
Accord Syl. pt. 2, State v. Smith, 220 W. Va. 565, 648 S.E.2d 71 (2007).
14
Rule 16 of West Virginia Rules of Criminal Procedure provides, in pertinent
part, that “[u]pon request of the defendant, the state shall furnish to the defendant a written
list of names and addresses of all state witnesses whom the attorney for the state intends to
call in the presentation of the case in chief . . . .” W. Va. R. Crim. P. 16(a)(1)(F).
9
In rendering its decision to allow the State to call Dr. Yeargan, the trial court
ruled:
THE COURT: Well here is what we’re going to do. I’ll
just rule on it and we’ll move on. I’m going to let him testify,
and I’m going to let you talk to him before he gets up here. All
right. And you can take whatever time you need to do, all right,
to do that. And if you want to — if you want to have him testify
on direct and then recess and consider your cross examination
over the evening, I’ll let you do that and you can bring him back
and cross-examine him tomorrow. All right.
The State argues that Mr. H. was not surprised nor prejudiced by the late disclosure because
he was aware that Dr. Yeargan had examined the victim for the court. Further, Dr. Yeargan’s
trial testimony was consistent with his report and the testimony he provided during a pretrial
hearing.
Insofar as Dr. Yeargan was brought into this case to perform a psychological
examination of the victim we do not find that Mr. H. was unduly surprised by the State’s late
decision to include him as a witness. Obviously, the fact that Dr. Yeargan examined the
victim for purposes of the trial made it readily apparent that he might be called as a witness.
More importantly, we find that Mr. H. has failed to show any prejudice from the untimely
disclosure. The trial court clearly gave Mr. H. adequate time to interview Dr. Yeargan before
he testified and to prepare for cross-examination. See State v. Trail, 174 W. Va. 656, 659-60,
328 S.E.2d 671, 675 (1985) (“[T]he trial court alleviated any possibility of harm to the
appellant’s preparation of his defense by allowing defense counsel additional time to
10
interview the new witnesses.”). The substance of Dr. Yeargan’s testimony was made known
to Mr. H. through a pretrial report and his pretrial testimony. See State v. James B., Sr., 204
W. Va. 48, 57, 511 S.E.2d 459, 468 (1998) (“[T]he Appellant was aware all along of the
substance of the victim’s statements. Further, considering that the [victim’s] testimony was
consistent with the prior statements given, we do not find that the addition of this witness
hampered the preparation and presentation of the defense.”). Morever, Dr. Yeargan’s trial
testimony did not address the issue that was central to Mr. H.’s objections to his testimony.
Mr. H. had expected Dr. Yeargan to specifically testify about the victim’s IQ test results,
which tests Dr. Yeargan did not administer. However, Dr. Yeargan did not provide
testimony of a specific IQ score for the victim.15
In sum, “the record fails to demonstrate that defense counsel’s preparation or
presentation was damaged by the late disclosure.” State v. Ward, 168 W. Va. 385, 390, 284
S.E.2d 881, 885 (1981). See also Franklin D. Cleckley, Handbook on West Virginia
Criminal Procedure, at 1-748 (2d ed. 1993) (“[T]he late disclosure of witnesses is not
reversible error unless it hampers preparation of opponent’s case.”). Our determination that
the record in this case does not show an abuse of discretion in allowing Dr. Yeargan to testify
is supported by the Court’s recent decision in State v. Wilson, 226 W. Va. 529, 703 S.E.2d
15As a consequence of Dr. Yeargan’s limited testimony, Mr. H. decided not to
cross examine him.
11
301 (2010).
The defendant in Wilson was convicted of conspiracy to deliver controlled
substances and sentenced to prison.16 One of the issues raised on appeal was whether the
trial court committed error in allowing the State to call two witnesses who were not disclosed
prior to the discovery cut-off date.17 One witness was a confidential informant, and the other
was a co-defendant. This Court found that the defendant was not prejudiced by the late
disclosure of the names of the two witnesses. First, the opinion noted that the defendant had
known the confidential informant for several years and that, at the time of the prosecution,
he was made aware of the confidential informant’s role in the case. Second, the opinion
found that the defendant “obviously knew the identity of the codefendant and that it was
likely he would be a witness for the State if he chose to enter a guilty plea.” Wilson, 226
W.Va. at 534, 703 S.E.2d at 306. See also State v. Weaver, 181 W. Va. 274, 382 S.E.2d 327(1989) (finding no prejudice in late disclosure of two wtinesses); State v. Zaccagnini, 172
W. Va. 491, 308 S.E.2d 131 (1983) (finding no prejudice in late disclosure of informant as
witness because defendant knew informant for approximately two years prior to the date of
his arrest).
16
The defendant also was convicted as a recidivist. That part of the sentence
was reversed.
17
The two witnesses were disclosed two days before the trial.
12
Wilson is instructive on a critical issue in the instant case. In Wilson we found
the defendant’s pretrial knowledge of the untimely disclosed witnesses, and their connection
with the case, put the defendant on notice that the witnesses could be called by the State. The
instant case is grounded in the same type of facts. Mr. H. knew Dr. Yeargan’s identity prior
to trial and understood his connection with the case. Of course, we do not suggest that in
every case when a defendant is aware of the identity of a person, and that person’s
connection with the case, the State may be allowed to name the person as a witness at a post-
discovery late date. However, this factor carries considerable weight when a defendant is not
prejudiced in the preparation of his or her case.
C. Allowing the State to Recall a Witness
Finally, Mr. H.’s brief sets out, as a single assignment of error, his objections
to Dr. Yeargan being called as a witness and Ms. Hasty being recalled as a witness. As a
result of mixing these two distinct issues, Mr. H. has not sufficiently briefed an assignment
of error regarding Ms. Hasty being recalled as a witness. The best that we are able to discern
from the brief, regarding recalling Ms. Hasty, is that she should not have been allowed to
give specific IQ results for the victim. Other than generally asserting this issue, Mr. H. has
not briefed the issue with any supporting authorities or legal analysis.18 See State v.
18
We wish to make abundantly clear that Mr. H. has not asserted nor briefed
this issue as a Confrontation Clause violation under Crawford v. Washington, 541 U.S. 36,
(continued...)
13
Kaufman, 227 W. Va. 537, 555 n.39, 711 S.E.2d 607, 625 n.39 (2011) (defendant failed to
argue or adequately brief the issues in the appeal); State v. Gilman, 226 W. Va. 453, 460
n.11, 702 S.E.2d 276, 283 n.11 (2010) (same); State v. Harris, 226 W. Va. 471, 476, 702
S.E.2d 603, 608 (2010) (same); State v. Day, 225 W. Va. 794, 806 n.21, 696 S.E.2d 310, 322
n.21 (2010) (same).
The decisions of this Court are quite clear. “Although we liberally construe
briefs in determining issues presented for review, issues . . . mentioned only in passing but
are not supported with pertinent authority, are not considered on appeal.” State v. LaRock,
18
(...continued)
124 S.Ct. 1354, 158 L. Ed. 2d 177 (2004), State v. Mechling, 219 W. Va. 366, 633 S.E.2d
311 (2006), and their progeny. This Court held in Syllabus point 6 of Mechling that:
Pursuant to Crawford v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Confrontation Clause
contained within the Sixth Amendment to the United States
Constitution and Section 14 of Article III of the West Virginia
Constitution bars the admission of a testimonial statement by a
witness who does not appear at trial, unless the witness is
unavailable to testify and the accused had a prior opportunity to
cross-examine the witness.
219 W. Va. 366, 633 S.E.2d 311.
Moreover, insofar as Mr. H.’s case was not in litigation or appeal at the time of Mechling,
he could not avail himself of that decision. See Syl. pt. 11, State v. Kennedy, 229 W. Va.
756, 735 S.E.2d 905 (2012) (“State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006)
stated a new rule of criminal procedure that is non-retroactive and is to be given prospective
application only.”). As we previously noted, the briefs do not explain why it took over seven
years for Mr. H.’s appeal to be presented.
14
196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996). Accord State v. Adkins, 209 W. Va. 212,
216 n.5, 544 S.E.2d 914, 918 n.5 (2001); State v. Easton, 203 W. Va. 631, 642 n.19, 510
S.E.2d 465, 476 n.19 (1998); State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111
n.16 (1995). We have explained that “[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.” State v. Surber, 228 W. Va. 621, 723 S.E.2d 851, 863 (2012) (internal quotation
marks and citations omitted). Our cases have held:
[a]n appellant must carry the burden of showing error in
the judgment of which he complains. This Court will not
reverse the judgment of a trial court unless error affirmatively
appears from the record. Error will not be presumed, all
presumptions being in favor of the correctness of the judgment.
State v. Myers, 229 W. Va. 238, ___, 728 S.E.2d 122, 130 (2012) (internal quotations and
citations omitted).
As a result of Mr. H.’s failure to adequately brief any issue involved with Ms.
Hasty being recalled as a witness, we will not consider the matter.19
19
Even if Mr. H. had adequately briefed the issue, we would not have addressed
the matter absent a finding of plain error. A review of the record in this case shows that Mr.
H. did not object, at the trial, to Ms. Hasty giving testimony regarding the victim’s specific
IQ tests results. Thus, this issue was not properly preserved as an assignment of error. “This
Court will not consider an error which is not properly preserved in the record nor apparent
on the face of the record.” Syl. pt. 4, State v. Browning, 199 W. Va. 417, 485 S.E.2d 1(1997). The raise or waive rule has been explained as part of a design “to prevent a party
from obtaining an unfair advantage by failing to give the trial court an opportunity to rule on
(continued...)
15
III.
CONCLUSION
In this appeal, we have determined that the trial court did not abuse its
discretion in allowing the indictment to be amended or in allowing the State to call a witness
that was not named on its witness list. We further find that Mr. H. failed to preserve and
adequately brief the issue of the State recalling a witness during the State’s case-in-chief.
Therefore, we affirm the order sentencing Mr. H. on his convictions for felony and
misdemeanor sexual offenses.
Affirmed.
19
(...continued)
the objection and thereby correct potential error.” State v. Guthrie, 205 W. Va. 326, 344, 518
S.E.2d 83, 101 (1999) (internal quotations and citation omitted). Further, we have noted that
the raise or waive rule seeks to “prevent[ ] a party from making a tactical decision to refrain
from objecting and, subsequently, should the case turn sour, assigning error (or even worse,
planting an error and nurturing the seed as a guarantee against a bad result).” State v.
LaRock, 196 W. Va. 294, 316, 470 S.E.2d 613, 635 (1996).
16