                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,

                                                                                    FILED
Plaintiff Below, Respondent                                                    November 6, 2015

                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-0224 (McDowell County 13-AP-153-S/14-AP-1-S)                          OF WEST VIRGINIA


Bobby Bolen, Sr.,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Bobby Bolen, Sr., by counsel Lacy W. Wright, Jr., appeals his conviction for
criminal harassment following a bench trial in the Circuit Court of McDowell County.
Respondent State of West Virginia, by counsel Laura Young, filed a response. According to the
parties’ briefs, petitioner was alleged to have used the social media website Facebook to
criminally harass a woman, Sharon Browning.

        Petitioner was initially convicted following a proceeding in the Magistrate Court of
McDowell County and, thereafter, appealed his conviction to circuit court. According to the
circuit court’s January 31, 2014, “Bench Trial Order,” which was included in petitioner’s Notice
of Appeal filed with this Court, the following occurred: the matter was heard by the circuit court
on January 27, 2014; the alleged victim testified and was cross-examined; the State moved six
exhibits into evidence;1 petitioner moved for a judgment of acquittal both at the close of the
State’s case and at the conclusion of the evidence; the circuit court denied both of these motions;
and the circuit court found petitioner guilty and sentenced him to six months in jail, all of which
was suspended in lieu of six months of unsupervised probation.

       However, through no fault of petitioner, there are no transcripts available from any of the
proceedings below.2 Due to the lack of a transcript, on July 1, 2014, petitioner filed a motion

       1
         We acknowledge the efforts of the State in obtaining what are purported to be the six
State’s exhibits that were introduced at petitioner’s trial, which were filed with this Court as a
supplemental appendix. However, without the accompanying trial testimony, these exhibits -­
standing alone -- are not sufficient to permit appellate review of this matter.
       2
          The State concedes in its brief that petitioner is not responsible for the limited record
submitted on appeal. According to a March 18, 2014, letter sent to petitioner’s counsel, Carolyn
DiLorenzo, CCR, Official Court Reporter for the Honorable Booker T. Stephens, confirmed that
neither the October 2, 2013, magistrate court proceeding, nor the January 27, 2014, circuit court
bench trial, were recorded. A copy of this letter is included in the appendix record submitted to
this Court by petitioner.


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with this Court to remand the matter to the circuit court for the limited purpose of conducting a
new bench trial. By order dated that same day, this Court granted petitioner’s motion, and further
held that petitioner’s appeal to this Court be held in abeyance pending resolution of the circuit
court proceedings. However, it appears that the circuit court dismissed petitioner’s appeal of his
conviction by order entered on March 23, 2015, without having conducted a new bench trial.

        As a result of the lack of a transcript from the proceedings below, our review of this
matter is rendered impossible. Under the very unique and specific circumstances presented by
this case, we find it necessary to reverse petitioner’s conviction and remand this matter back to
the Circuit Court of McDowell County for a new trial. This memorandum decision should not be
construed as a ruling by this Court on the merits of either party’s substantive arguments
presented in their respective briefs.

        For the foregoing reasons, we reverse the circuit court’s January 31, 2014, “Bench Trial
Order” and its March 23, 2015, “Amended Order Dismissing Appeal,” and remand this matter to
the Circuit Court of McDowell County for a new bench trial.

                                                                        Reversed and Remanded.

ISSUED: November 6, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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