State of West Virginia v. Steven Tewalt

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_______________
FILED
No. 19-0447 October 16, 2020
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent
v.
STEVEN TEWALT,
Defendant Below, Petitioner
____________________________________________________________
Appeal from the Circuit Court of Preston County
The Honorable Steven L. Shaffer
Case No. 18-F-44
AFFIRMED, IN PART; REVERSED, IN PART
____________________________________________________________
Submitted: September 16, 2020
Filed: October 16, 2020
Jeremy B. Cooper, Esq. Patrick Morrisey, Esq.
Blackwater Law PLLC Attorney General
Kingwood, West Virginia Andrea Nease-Proper, Esq.
Counsel for Petitioner Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The function of an appellate court when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine the evidence admitted at trial
to determine whether such evidence, if believed, is sufficient to convince a reasonable
person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is
whether, after viewing all the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proved beyond a
reasonable doubt.” Syllabus Point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163
(1995).
2. “A criminal defendant challenging the sufficiency of the evidence to
support a conviction takes on a heavy burden. An appellate court must review all the
evidence, whether direct or circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that the jury might have drawn
in favor of the prosecution. The evidence need not be inconsistent with every conclusion
save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility
determinations are for a jury and not an appellate court. Finally, a jury verdict should be
set aside only when the record contains no evidence, regardless of how it is weighed, from
which the jury could find guilt beyond a reasonable doubt. To the extent that our prior
cases are inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie,
194 W. Va. 657, 461 S.E.2d 163 (1995).
i
3. “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 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.” Syllabus Point
2, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
4. “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
ii
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.” Syllabus
Point 1, State v. McGinnis, 193 W. Va. 147, 455 S.E.2d 516 (1994).
5. “It is presumed a defendant is protected from undue prejudice if the
following requirements are met: (1) the prosecution offered the evidence for a proper
purpose; (2) the evidence was relevant; (3) the trial court made an on-the-record
determination under Rule 403 of the West Virginia Rules of Evidence that the probative
value of the evidence is not substantially outweighed by its potential for unfair prejudice;
and (4) the trial court gave a limiting instruction.” Syllabus Point 3, State v. LaRock, 196
W. Va. 294, 470 S.E.2d 613 (1996).
6. “‘Events, declarations and circumstances which are near in time,
causally connected with, and illustrative of transactions being investigated are generally
considered res gestae and admissible at trial.’ State v. Ferguson, 165 W. Va. 529, 270
S.E.2d 166 (1980), overruled on other grounds by State v. Kopa, 173 W. Va. 43, 311 S.E.2d
412 (1983).” Syllabus Point 7, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014).
7. “The Supreme Court of Appeals reviews sentencing orders, including
orders of restitution made in connection with a defendant’s sentencing, under a deferential
iii
abuse of discretion standard, unless the order violates statutory or constitutional
commands.” Syllabus Point 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).
iv
WALKER, Justice:
After Petitioner Steven Tewalt strangled his then-wife Krystal Tewalt in
November 2017, he was convicted of one count of strangulation under West Virginia Code
§ 61-2-9d (2016). At trial, the State was permitted to use evidence of Mrs. Tewalt’s prior
report of a similar strangulation by Mr. Tewalt in September 2017. On appeal, Mr. Tewalt
challenges not only the admission of the collateral acts evidence under Rule 404(b) of the
West Virginia Rules of Evidence, but also the sufficiency of the evidence to support his
conviction, and his sentence, which included a lifetime no-contact protective order.
Because we find that there was sufficient evidence for a jury to find Mr. Tewalt guilty of
strangulation and that the evidence of his prior conduct was properly admitted, we affirm
in part. But because we find that the circuit court lacked the authority to impose a lifetime
no-contact protective order, we reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, Mr. Tewalt’s then-wife, Krystal Tewalt, called the police
claiming that Mr. Tewalt grabbed her throat and attempted to “choke her out.” An officer
with the Preston County Sheriff’s Office responded to the call and noted an abrasion on
Mrs. Tewalt’s neck. The officer photographed the injuries and informed the victim that
she could seek an emergency domestic violence protective order or file a complaint against
Mr. Tewalt that would result in his prosecution for domestic battery or strangulation. Mrs.
Tewalt exercised neither option. Two months later, Mrs. Tewalt went to the police station
and asserted that Mr. Tewalt had strangled her a second time on November 18, 2017.
1
On March 6, 2018, a Preston County grand jury indicted Mr. Tewalt on a
single count of strangulation under West Virginia Code § 61-2-9d(b) 1 for the November
2017 incident. Prior to trial, the State noticed its intent to introduce collateral acts evidence,
including the police report detailing the September 2017 incident and Mrs. Tewalt’s
testimony regarding the alleged September 2017 strangulation. Mr. Tewalt objected to the
introduction of this evidence, claiming that the State failed to satisfy Rule 404(b) of the
West Virginia Rules of Evidence and that the September acts were not intrinsic to the
alleged offense in November. The circuit court addressed the State’s notice of intent
twice—once at a pretrial hearing on January 16, 2019, and again on February 5, 2019, the
first day of trial—and ultimately granted the State’s motion to admit the collateral acts
evidence over Mr. Tewalt’s objection. The circuit court determined the evidence was
1
West Virginia Code § 61-2-9d provides,
(a) As used in this section:
“Bodily injury” means substantial physical pain, illness
or any impairment of physical condition;
“Strangle” means knowingly and willfully restricting
another person’s air intake or blood flow by the
application of pressure on the neck or throat;
[. . .]
(b) Any person who strangles another without that person’s
consent and thereby causes the other person bodily injury or
loss of consciousness is guilty of a felony and, upon conviction
thereof, shall be fined not more than $2,500 or imprisoned in a
state correctional facility not less than one year or more than
five years, or both fined and imprisoned.
2
properly admitted under Rule 404(b) to prove “intent, motive, opportunity, absence of
mistake, and lack of accident.”
At trial, the State called Mrs. Tewalt to testify. According to her testimony,
on November 18, 2017, Mr. Tewalt came up behind her and grabbed her neck. Mrs. Tewalt
could not escape his hold and grabbed his wrists in an attempt to disengage his hands from
her throat. While gripping her neck, Mr. Tewalt repeatedly slammed her downward to the
pantry floor, causing her body to come into contact with shelves and a table. Once on the
floor, Mr. Tewalt continued to apply pressure and Mrs. Tewalt blacked out. She awoke on
her back, with Mr. Tewalt sitting on top of her, approximately six to seven feet away from
where she had been standing. Mr. Tewalt then stood up and Mrs. Tewalt attempted to leave
the home, but Mr. Tewalt intervened and told her she should stay in their bedroom. In the
days following the incident, Mrs. Tewalt experienced pain in her throat, difficulty
swallowing, and hoarseness when speaking. She also had several knots on her head, a
blood blister on her eye, and bruises on various parts of her body. She further testified that
she visited a doctor the following week and was unable to fully open her mouth. 2 After
the incident, Mrs. Tewalt petitioned the Magistrate Court of Preston County for a
temporary domestic violence protective order, and a magistrate completed the forms, but
2
Medical records were not admitted at trial. Also, on cross-examination, defense
counsel elicited testimony from Mrs. Tewalt that she did not know that the strangulation
caused her to lose consciousness, nor did she inform her doctor that she had suffered a
strangulation injury as “within six days it had pretty much healed.”
3
there is nothing in the record to indicate that this order was made final or that it was ever
extended. Mrs. Tewalt also testified about the strangulation incident in September 2017.
At the close of Mrs. Tewalt’s testimony, the circuit court instructed the jury
that the evidence regarding the September 2017 strangulation was offered to prove
“motive, opportunity, intent, absence of mistake, and lack of accident,” and not to prove
that Mr. Tewalt strangled the victim on November 18, 2017. The State then called the
officer who handled both the September and November 2017 incidents to testify. Through
his testimony, the State introduced eleven exhibits, all photographs of Mrs. Tewalt’s
injuries from the September and November incidents. 3 At the close of the State’s evidence,
Mr. Tewalt moved for a judgment of acquittal, which the circuit court denied.
During Mr. Tewalt’s case-in-chief, he presented testimony of three witnesses
who were living in or visiting the home during the relevant time period. All three witnesses
testified that they did not witness Mr. Tewalt strangling Mrs. Tewalt. Mr. Tewalt did not
testify. At the close of his case-in-chief, Mr. Tewalt again moved for a judgment of
acquittal, which the circuit court denied. The circuit court then instructed the jury on the
elements of strangulation and sent the jury to deliberate. During deliberation, the jury sent
two questions to the court: (1) could the jury consider a charge of battery; and (2) could
the court define “substantial” as used in the strangulation statute. In response to the first
3
These photos depicted the bruising to Mrs. Tewalt’s face, the blood blister on her
eye, and the injuries to her neck, foot, and ear.
4
question, the court answered, “No, you may not consider any other criminal charge beyond
the criminal charge of ‘Strangulation’ contained in the indictment.” As to the second, the
court instructed the jury that “[t]o determine what is ‘substantial’ for the element of ‘bodily
injury’ in the Strangulation statute, you are to reach conclusions which reason and common
sense lead you to draw from the facts established by the evidence in this case.” After
deliberating further, the jury then indicated that it was deadlocked and the court delivered
an Allen 4 charge. The jury returned a verdict of guilty on the single count of strangulation.
Mr. Tewalt filed several post-trial motions. First, he moved for a new trial
based on the admission of the collateral acts evidence. He argued there was insufficient
evidence to show he tried to strangle his wife during the September 2017 incident and that
the circuit court erred by failing to instruct the jury on the specific purpose of the collateral
acts evidence, instead giving a litany of possible uses under Rule 404(b). Second, Mr.
Tewalt moved for an acquittal on the basis of insufficient evidence. Third, he moved for
arrest of judgment regarding the court’s failure to define the term “substantial” as used in
the strangulation statute. Finally, he moved for a mistrial, arguing that the jury doubted his
guilt as they asked if they could find him guilty of a lesser charge. The circuit court denied
4
See State v. Waldron, 218 W. Va. 450, 459 n.11, 624 S.E.2d 887, 896 n.11 (2005)
(“The Allen charge, often called the ‘dynamite charge,’ is a supplemental instruction given
to encourage deadlocked juries to reach agreement.” Franklin D. Cleckley, Handbook on
West Virginia Criminal Procedure, Vol. II, page 257 (2nd Ed.1993). The name for this
particular instruction originated from the case of Allen v. United States, 164 U.S. 492, 17
S. Ct. 154, 41 L. Ed. 528 (1896).”).
5
each of these motions without analysis in its Order Following Post Trial Motion Hearing
on March 19, 2019.
On April 19, 2019, Mr. Tewalt appeared for sentencing. The circuit court
stated that it intended to (1) sentence Mr. Tewalt to one to five years in prison and (2)
impose a lifetime protective order so that Mr. Tewalt would “never have any contact with
the victim.” Mr. Tewalt’s counsel asked the circuit court to identify the authority upon
which it would enter the lifetime protective order, but the circuit court did not do so. A
few days later, the circuit court memorialized its intentions in its April 26, 2019 Sentencing
Order. With regard to the lifetime protective order, the court stated that Mr. Tewalt “shall
have no contact, direct or indirect, with [the victim] under further Order of this Court, and
shall not in any case be dissolved without reasonable notice to the parties. . . .” Mr. Tewalt
now appeals both the Order Following Post Trial Motion Hearing and the Sentencing Order
to this Court.
II. STANDARD OF REVIEW
Different standards of review apply to each of Mr. Tewalt’s assignments of
error, so we set out the relevant standards of review as part of the analysis of each below.
III. ANALYSIS
Mr. Tewalt asserts several assignments of error before this Court. First, he
argues the circuit court erred in denying his motion for acquittal based on insufficiency of
6
the evidence. Second, he argues the circuit court erred in admitting certain collateral acts
evidence under Rule 404(b) of the West Virginia Rules of Evidence. Finally, he argues
the circuit court erred in imposing a lifetime protective order in Mrs. Tewalt’s favor at
sentencing. We address these arguments in turn. 5
A. Insufficiency of the Evidence
When this Court considers sufficiency of the evidence challenges on appeal,
the standard of review includes reviewing the evidence in the light most favorable to the
prosecution:
The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine whether
such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable
doubt. Thus, the relevant inquiry is whether, after viewing all
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime proved beyond a reasonable doubt.
[. . .]
5
Mr. Tewalt also argues that the strangulation statute, W. Va. Code § 61-2-9d, is
unconstitutionally vague in that it fails to define what is meant by “substantial” pain for
purposes of the element of bodily injury. In the same vein, Mr. Tewalt argues the circuit
court erred in failing to grant his motion for mistrial on the basis that the jury was confused
by this vagueness, as evidenced by its submission of a question to the court asking that the
term be defined. The court answered the jury’s question by stating, “[t]o determine what
is ‘substantial’ for the element of ‘bodily injury’ in the Strangulation statute, you are to
reach conclusions which reason and common sense lead you to draw from the facts
established by the evidence in this case.” We conclude that Mr. Tewalt waived these
arguments in that he failed to preserve the vagueness argument for appeal because he did
not object to the court’s answer to the jury’s inquiry below. So, we do not address these
arguments on appeal.
7
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that
the jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save
that of guilt so long as the jury can find guilt beyond a
reasonable doubt. Credibility determinations are for a jury and
not an appellate court. Finally, a jury verdict should be set
aside only when the record contains no evidence, regardless of
how it is weighed, from which the jury could find guilt beyond
a reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.[6]
Mr. Tewalt contends the State failed to prove an essential element of the
crime of strangulation, under West Virginia Code § 61-2-9d, in that it did not prove beyond
a reasonable doubt that the victim suffered a “restriction of air intake or blood flow” which
caused her loss of consciousness, substantial physical pain, illness, or impairment of
physical condition. Below, Mrs. Tewalt testified that she lost consciousness during the
November strangulation incident while Mr. Tewalt was applying pressure to her throat with
his hands. Mr. Tewalt contends the State failed to establish a causal link between his
choking Mrs. Tewalt and her loss of consciousness during the attack, and her pain and
illness after the attack. More specifically, Mr. Tewalt contends there are other explanations
for Mrs. Tewalt’s loss of consciousness and injuries in that, during the strangulation
incident, her body struck shelves and a table in the room, and that the striking—as opposed
6
Syl. Pts. 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995) (footnote
added).
8
to the restriction of air intake or blood flow— could have caused the loss of consciousness
and injuries.
But Mr. Tewalt has not met the heavy burden facing a petitioner taking on a
sufficiency of the evidence challenge in a criminal matter. The evidence introduced below,
in the form of Mrs. Tewalt’s detailed testimony, established that Mr. Tewalt was applying
pressure to her throat with his hands and “choking the air out of her,” that she was unable
to dislodge his hands from her neck, that Mr. Tewalt repeatedly slammed her body toward
the floor while still applying pressure to her throat, and that she lost consciousness during
the incident. Mrs. Tewalt also testified that she regained consciousness on her back several
feet from where the incident began and that Mr. Tewalt was sitting on her chest. Finally,
Mrs. Tewalt testified that she suffered from throat pain, an inability to swallow, and
hoarseness when speaking after the incident. The State also introduced photographs of
Mrs. Tewalt’s injuries taken by a Preston County sheriff’s deputy.
Mr. Tewalt introduced evidence from other individuals in the home at the
time of the incident who attempted to explain away Mrs. Tewalt’s injuries, including that
bruising on her neck was caused by her having lifted a bale of hay onto her shoulder in her
efforts to feed the family’s livestock. Mr. Tewalt also decries the State’s failure to submit
medical evidence to the jury and highlights that Mrs. Tewalt stated during cross-
examination that she did not have a doctor examine her strangulation injuries. Mr. Tewalt
concludes his arguments to this Court by noting the myriad other explanations for the
9
victim’s injuries, including that her hoarseness resulted from shouting and that neck pain
could result from contact short of strangulation. While we do not doubt that such
explanations are theoretically plausible, we can also easily conclude that the jury had
before it sufficient evidence to deduce that the victim’s loss of consciousness and injuries
resulted from Mr. Tewalt’s having applied pressure to her throat such that her air intake or
blood flow were restricted.
Our standard of review asks whether a rational trier of fact could conclude,
based on the above evidence, that Mr. Tewalt knowingly and willfully restricted Mrs.
Tewalt’s air intake or blood flow by applying pressure to her neck or throat and that such
restriction caused her to lose consciousness or suffer bodily injury. Reviewing the
evidence in the light most favorable to the prosecution, we have little doubt that a rational
trier of fact could conclude that Mr. Tewalt’s choking the victim caused her loss of
consciousness; moreover, a rational juror could conclude that Mrs. Tewalt’s subsequent
pain, as well as her difficulty speaking and swallowing, resulted from the choking rather
than from some other source. Therefore, we affirm the circuit court’s denial of Mr.
Tewalt’s motion for acquittal based on insufficiency of the evidence.
B. Collateral Acts Evidence
Mr. Tewalt next contends the circuit court erred in admitting evidence of the
September 2017 incident as collateral acts evidence under Rule 404(b) of the West Virginia
Rules of Evidence because it did not specify a particular purpose for its admission. The
10
State counters that the evidence was properly admitted under Rule 404(b), and even if it
were not, the evidence would still be permitted as intrinsic evidence. In considering
evidentiary admissions under Rule 404(b), we employ the following three-step standard of
review:
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.[7]
At the heart of Mr. Tewalt’s challenge on this point is our holding in Syllabus
Point 2 of State v. McGinnis, 8 which sets out a procedure for the trial court to follow prior
to admitting Rule 404(b) evidence, including an in camera hearing, a relevancy finding,
and an instruction to the jury:
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
7
State v. LaRock, 196 W. Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996) (footnote
added).
8
193 W. Va. 147, 455 S.E.2d 516 (1994).
11
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.
Mr. Tewalt first argues the circuit court’s in camera hearing failed to elicit
the required information for the court to make a determination that a preponderance of the
evidence showed that the September 2017 incident truly occurred. Second, he contends
that the evidence was irrelevant under Rules 401 and 402. Third, he contends that the
evidence was inadmissible as the risk of prejudice outweighed its probative value under
Rule 403. And finally, he argues that the circuit court did not appropriately instruct the
jury as required by Syllabus Point 1 of State v. McGinnis, 9 which states:
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.
9
Id.
12
 Having reviewed the record, it is abundantly clear that the circuit court
conducted a proper in camera hearing to determine the admissibility of the State’s proffered
Rule 404(b) evidence. At this hearing, the trial court had before it the proffered testimony
of the victim and the investigating officer, as well as the police report detailing the incident
and photographs of the victim’s injuries at that time. While the bulk of that hearing was
devoted to addressing audio recordings which were subsequently excluded under the
spousal communications privilege, the parties also openly discussed the admission of the
evidence at issue here regarding the September 2017 incident. As such, we cannot agree
with Mr. Tewalt that the trial court lacked sufficient information to determine by a
preponderance of the evidence that the September 2017 incident occurred.
Second, turning to the question of relevancy, we recognize that, by virtue of
this evidence being introduced under Rule 404(b), it must be relevant to one of the
permitted purposes under subsection (b)(2). As we discuss further below, the State
proffered the evidence of the September 2017 incident to illustrate motive, intent,
opportunity, lack of accident, and absence of mistake. We have also recognized that
“[u]nder Rule 401, evidence having any probative value whatsoever can satisfy the
relevancy definition. Obviously, this is a liberal standard favoring a broad policy of
admissibility.” 10 Under a liberal construction, we have no trouble determining this
McDougal v. McCammon, 193 W. Va. 229, 236, 455 S.E.2d 788, 795 (1995)
10
(emphasis in original).
13
evidence has some probative value and that it could be used to demonstrate that Mr. Tewalt
was capable of forming the intent to strangle the victim and willfully follow through with
that conduct. That evidence would similarly serve to counter any argument that Mr. Tewalt
accidentally or mistakenly strangled the victim in November. Because it is clear the
collateral acts evidence was introduced for a permitted purpose, and the evidence was
relevant to illustrate that purpose, we conclude that the circuit court did not err in
determining that the collateral acts evidence was relevant.
Third, we have directly spoken on the Rule 403 balancing of probative value
and the potential for unfair prejudice and held
[i]t is presumed a defendant is protected from undue prejudice
if the following requirements are met: (1) the prosecution
offered the evidence for a proper purpose; (2) the evidence was
relevant; (3) the trial court made an on-the-record
determination under Rule 403 of the West Virginia Rules of
Evidence that the probative value of the evidence is not
substantially outweighed by its potential for unfair prejudice;
and (4) the trial court gave a limiting instruction.[11]
Each of these elements is clearly satisfied here. The prosecution offered the evidence for
clearly specified purposes: motive, intent, opportunity, absence of mistake, and lack of
accident. The evidence, as discussed above, was relevant. The trial court conducted a
hearing to determine if the probative value of the evidence was substantially outweighed
by its potential for unfair prejudice when it conducted the above-described hearing and
11
Syl. Pt. 3, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996) (footnote
added).
14
subsequently permitted the introduction of this evidence. Finally, the court gave a limiting
instruction twice: once when the evidence was first presented to the jury, and again before
the jury was sent to deliberate. So, we find there was a presumption the evidence’s
probative value was not outweighed by its potential for unfair prejudice.
Finally, we turn to Mr. Tewalt’s contention that the State and the circuit court
violated Syllabus Point 1 of McGinnis in that they listed a “litany of possible uses” for the
proffered Rule 404(b) evidence. Mr. Tewalt’s argument cannot sustain a facial challenge.
Rule 404(b)(2) lists nine permitted uses: motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, and lack of accident. As noted above, the
prosecution offered evidence of the September 2017 strangulation incident to prove, and
the circuit court instructed the jury on, the following five possible uses: intent, motive,
opportunity, absence of mistake, and lack of accident. As such, neither the prosecution nor
the circuit court listed the “litany of possible uses” for this evidence as prohibited by our
holding in McGinnis. We have no doubt that it is possible to admit evidence under Rule
404(b) for more than one purpose so long as the prosecution and the circuit court identify
those specific purposes, as was done here. That said, we caution practitioners and the
courts to be careful in their citations to the Rule 404(b) permitted uses and ensure that the
evidence supports citation to the specific use or uses.
Although we are satisfied the trial court did not err in permitting the State to
introduce the collateral acts evidence relating to the September 2017 incident, we are also
15
cognizant that this evidence could have been admitted as intrinsic evidence and bypassed
the Rule 404(b) requirements. As we held in Syllabus Point 7 of State v. McKinley, 12
“[e]vents, declarations and circumstances which are near in time, causally connected with,
and illustrative of transactions being investigated are generally considered res gestae and
admissible at trial.” And, we have long permitted trial courts to admit evidence of past bad
acts where the acts are part of a single criminal episode, where the previous acts constitute
necessary preliminaries to the charged act, or where the previous acts are inextricably
intertwined with the charged act. 13 In State v. Dennis, a situation similar to this case, we
upheld the trial court’s decision to allow the admission of intrinsic evidence in the form of
prior acts of domestic violence. We noted that those prior acts were necessary to
“‘complete the story of the crimes on trial’ or otherwise provide context to the crimes
charged.” 14 Much like the prior domestic violence incidents in Dennis, the September 2017
strangulation incident here completes the story and provides context for the November
2017 strangulation incident. As such, we conclude that, even if this evidence had been
inadmissible under Rule 404(b), it would have been admissible as intrinsic evidence under
Dennis.
12
234 W. Va. 143, 764 S.E.2d 303 (2014).
13
State v. Dennis, 216 W. Va. 331, 351, 607 S.E.2d 437, 457 (2004).
14
Id. (quoting LaRock, 196 W. Va. at 312 n.29, 470 S.E.2d at 631 n.29).
16
For the foregoing reasons, we affirm the trial court’s order as far as it denied
Mr. Tewalt’s motion for a new trial on the basis that the court improperly admitted the
collateral acts evidence.
C. Lifetime Protective Order
Finally, Mr. Tewalt argues the circuit court erred in imposing a lifetime
protective order in Mrs. Tewalt’s favor at the sentencing hearing. Essentially, the lifetime
protective order provided that Mr. Tewalt was prohibited from having any contact with the
victim for life. Mr. Tewalt objected to the imposition of that protective order below on the
basis that the circuit court identified no authority under which it could sustain such an
order. We have held that we “review[] sentencing orders, including orders of restitution
made in connection with a defendant’s sentencing, under a deferential abuse of discretion
standard, unless the order violates statutory or constitutional commands.” 15 As we are
unable to identify any authority permitting the circuit court to impose this lifetime
protective order, we agree with Mr. Tewalt that the circuit court committed clear error in
this regard.
The West Virginia Code provides for different types of protective orders,
including what may be considered permanent protective orders, in specific contexts. First,
under West Virginia Code § 48-5-608(a) (2005), a circuit court may enter a lifetime
15
Syl. Pt. 1, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997).
17
protective order in conjunction with a divorce. Second, under West Virginia Code § 48-
27-505 (2010), a court may enter a domestic violence protective order which has an initial
duration of 180 days, with a possible extension of 90 days. Upon violation of the initial
order, the court may enter a second extension lasting up to one year. 16 If there is a second
violation of the order, the court may enter a third and final extension in a duration to be
determined by the court. 17
Here, § 48-5-608(a) is clearly inapplicable because this is not a divorce
proceeding. On the other hand, § 48-27-505 is technically applicable in that the trial court
could have entered an initial 180-day order with a possible 90-day extension. 18 But, in the
absence of evidence that Mr. Tewalt violated the initial order, the court could not have
extended it for an additional year, let alone indefinitely. There was no evidence presented
below, nor is there anything in the record, to illustrate that Mr. Tewalt ever violated a
domestic violence protective order imposed under West Virginia Code § 48-27-505. We
are further unable to identify any authority under which the trial court could have imposed
a lifetime protective order. As such, we conclude the circuit court clearly erred and we
reverse its sentencing order insofar as it imposes a lifetime protective order.
16
W. Va. Code § 48-27-505(b) (2010).
17
W. Va. Code § 48-27-505(c) (2010).
18
As noted above, there is some dispute as to whether the magistrate finalized an
initial 180-day order after the November 2017 incident.
18
IV. CONCLUSION
For the above reasons, we affirm the Circuit Court of Preston County’s
March 19, 2019 Order Following Post Trial Motion Hearing. We reverse, in part, the
Circuit Court of Preston County’s April 27, 2019 Sentencing Order, only insofar as it
imposes a lifetime protective order in favor of Mrs. Tewalt.
Affirmed, in part, and reversed, in part.
19