                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                                         FILED
State of West Virginia,                                                            November 23, 2015
Plaintiff Below, Respondent                                                        RORY L. PERRY II, CLERK

                                                                                 SUPREME COURT OF APPEALS

                                                                                     OF WEST VIRGINIA

vs) No. 14-1320 (McDowell County 12-F-119-M)

David M.,

Defendant Below, Petitioner



                               MEMORANDUM DECISION
         Petitioner David M.,1 by counsel Floyd A. Anderson, appeals the Circuit Court of
McDowell County’s December 1, 2014, order sentencing him to a term of incarceration of five
to ten years for one count of second-degree sexual assault and a consecutive term of
incarceration of two to ten years for one count of incest.2 The State, by counsel Laura Young,
filed a response in support of the circuit court’s order. On appeal, petitioner argues that the
circuit court erred in allowing evidence of prior bad acts and DNA evidence to be introduced into
his trial.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

       On October 23, 2012, the McDowell County grand jury indicted petitioner on one count
of incest against his niece J.M. and one count of second-degree sexual assault. The indictment

       1
          “We follow our past practice in ... cases which involve sensitive facts and do not utilize
the last names of the parties.” State ex rel. W.Va. Dep’t of Human Servs. v. Cheryl M., 177
W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987) (citations omitted). See also State v.
Edward Charles L., 183 W.Va. 641, 645 n. 1, 398 S.E.2d 123, 127 n. 1 (1990) (“Consistent with
our practice in cases involving sensitive matters, we use the victim’s initials. Since, in this case,
the victim . . . [is] related to the [petitioner], we have referred to the [petitioner] by his last name
initial.”(citations omitted)).
       2
        Petitioner was separately convicted and sentenced to a term of incarceration for one
count of voluntary manslaughter in a separate criminal proceeding. Petitioner’s sentence for
voluntary manslaughter is not at issue in the instant appeal.


                                                   1

charged that the sexual crimes occurred between August and September of 1982. In July of 2013,
the State filed notice of its intent to use evidence of prior bad acts pursuant to Rule 404(b) of the
West Virginia Rules of Evidence. The proposed evidence related to earlier acts allegedly
committed by petitioner beginning in the early 1970s wherein he began a systematic and routine
pattern of sexually and physically abusing his nieces, J.M. and M.M., and his parents’ foster
children, P.O. and D.O., and physically abusing his nephew R.M. every Saturday and at random
times until the early 1980s. A McGinnis hearing3 was held September 27, 2013, wherein the
State produced four witnesses: J.M., M.M., R.M., and P.O.4 J.M. testified that the sexual abuse
began in approximately 1972 and continued routinely every Saturday until approximately 1983.
According to J.M., the sexual abuse ceased for a brief period while she was pregnant with
petitioner’s child.5 M.M. testified that petitioner forced her to perform oral sex on him and to
have intercourse. R.M. testified that on “every Saturday” petitioner would “pull all of our clothes
off, and we would have to lay across the bed and hold each other, one hold the legs and one hold
the arms, and he had a [miner’s] belt that we would get whippings with[.]”

        At the hearing, the State argued that the prior bad act evidence was offered for the limited
purposes of showing petitioner’s motive and common scheme or plan. Petitioner’s counsel
argued that the testimony regarding the physical and sexual abuse was too remote in time and
that the evidence was more prejudicial than probative. Thereafter, on October 17, 2013, the
circuit court ruled that the State would be allowed to introduce evidence of the sexually-related
violence to show his lustful disposition toward young female relatives, and proof of an
opportunity. The circuit court also ruled that the State was prohibited from introducing any
evidence that was non-sex related because it does not show motive of a lustful disposition.

         In December of 2013, the State filed a second notice of intent to use evidence of prior bad
acts pursuant to Rule 404(b). The proposed evidence related to alleged acts wherein petitioner
forced R.M. to attempt sexual acts with J.M., P.O., and D.O. while he watched. These acts
occurred during the same time period at the other alleged sexual and physical abuse. The State
also argued that these acts were probative of petitioner’s lustful disposition towards young girls
in the family. The circuit court held another McGinnis hearing on February 24, 2014. The State
produced three witnesses J.M., R.M., and P.O. R.M. testified that petitioner forced him to
perform specific sexual acts with J.M., P.O., and D.O. while he watched. J.M. and P.O. further
testified that petitioner forced R.M. to attempt to have sexual intercourse with them on the
bathroom floor while he watched. Furthermore, J.M. testified that petitioner forced her to
“masturbate in front of everyone” as a form of punishment. Testimony further revealed that
petitioner physically abused the children if they failed to appease his sexual perversions.



       3
           See State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).
       4
        J.M. and P.O. each were approximately six years old when the alleged abuse began.
M.M. was approximately nine years old and R.M. was approximately five years old when the
alleged abuse began.
       5
         J.M. gave birth to petitioner’s baby, T.M., in August of 1982. T.M. died shortly before
petitioner’s trial.
                                                 2

         Thereafter, on May 27, 2014, petitioner filed a motion to suppress any DNA evidence of
himself or his son, T.M. because the State failed to show a proper chain of custody for the DNA
samples. The following day, the circuit court held a suppression hearing wherein Michael
Spradlin, an investigator for the McDowell County Prosecutor’s Office, testified. Mr. Spradlin
testified that he collected two “buccal swabs” from petitioner on July 16, 2012. According to Mr.
Spradlin, he placed each sample inside its original packaging, which he then placed inside a
“manila envelope” and closed with a “clasp.” After securing the samples, Mr. Spradlin testified
that he placed the samples inside a “container” which remained in his home until he delivered the
samples to the forensic lab on July 30, 2012. Mr. Spradlin further testified that, upon receiving
T.M.’s “blood stain collection card” from the medical examiner’s office, he placed the card
inside another envelope and “drove it straight . . . to the forensic [lab.]” By order entered June 3,
2014, the circuit court denied petitioner’s motion to suppress any DNA evidence finding that
“Investigator Spradlin had sole and exclusive possession of the evidentiary items while they
were in his custody.”

        Petitioner’s jury trial commenced on August 11, 2014. By order entered the same day, the
circuit court ruled that the State could introduce evidence that petitioner forced R.M. to commit
sexual acts on his sisters as testified to during the February 24, 2014, McGinnis hearing to further
show petitioner’s lustful disposition towards young children in his family. During the trial, the
State presented the testimony of J.M., M.M., R.M., P.O., D.O., and Investigator Spradlin.6 After
the State rested, petitioner moved for a directed verdict, which was denied by the circuit court.
Petitioner presented two witnesses in his defense. The State presented no rebuttal evidence or
testimony. After petitioner rested, he renewed his motion for directed verdict which the circuit
court denied. Following its deliberations, the jury found petitioner guilty of one count of incest
and one count of second-degree sexual assault.

        In August of 2014, petitioner filed a motion for post-verdict judgment of acquittal and/or
motion for a new trial alleging that the evidence was insufficient to sustain a conviction for the
charges of incest and second-degree sexual assault. By order entered September 24, 2014, the
circuit court denied petitioner’s motion. In December of 2014, the circuit court sentenced
petitioner to a term of incarceration of five to ten years for one count of second-degree sexual
assault, in violation of West Virginia Code § 61-8B-4, and a consecutive term of incarceration of
two to ten years for one count of incest, in violation of West Virginia Code § 61-8-12. The
circuit court also ordered that petitioner be subject to a fifty-year term of supervised release
pursuant to West Virginia Code § 62-12-26. This appeal follows.

       On appeal, petitioner argues that the circuit court erred in admitting Rule 404(b) evidence
in the form of J.M., M.M., R.M., and P.O.’s testimony because the alleged prior bad acts
occurred eight to ten years prior to the date of the charges in the indictment, thus too remote in
time. This Court has held that

               [w]hether evidence offered is too remote to be admissible upon the trial of
       a case is for the trial court to decide in the exercise of a sound discretion; and its

       6
         Petitioner did not include a complete copy of the trial transcript as part of the appendix
record. Furthermore, petitioner only included excerpts of Mr. Spradlin’s testimony.
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       action in excluding or admitting the evidence will not be disturbed by the
       appellate court unless it appears that such action amounts to an abuse of
       discretion.

Syl. Pt. 5, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945). In this case, the circuit court
heard testimony that petitioner sexually abused J.M., M.M., R.M., P.O., and D.O. from roughly
1972 through 1983. The crimes underlying the current conviction occurred in 1982. Thus, the
time frame of the 404(b) evidence is relevant. Moreover, “[a]s a general rule remoteness goes to
the weight to be accorded the evidence by the jury, rather than to admissibility.” Syl. Pt. 6, State
v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982). For these reason, we find no abuse of
discretion.

       Petitioner also argues that the 404(b) evidence was not relevant and its probative value
was substantially outweighed by the danger of unfair prejudice. This Court has stated:

       The standard of review for a trial court’s admission of evidence pursuant to Rule
       404(b) involves a three-step analysis. First, we review for clear error the trial
       court’s factual determination that there is sufficient evidence to show the other
       acts occurred. Second, we review de novo whether the trial court correctly found
       the evidence was admissible for a legitimate purpose. Third, we review for an
       abuse of discretion the trial court’s conclusion that the “other acts” evidence is
       more probative than prejudicial under Rule 403.

State v. Jonathan B., 230 W.Va. 229, 236, 737 S.E.2d 257, 264 (2012) (quoting State v. LaRock,
196 W.Va. 294, 310–11, 470 S.E.2d 613, 629–30 (1996)). We have further explained:

                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.

Syl. Pt. 2, McGinnis, 193 W. Va. at 151, 455 S.E.2d at 520. It is undisputed that the circuit court
conducted two McGinnis hearings on September 27, 2013, and February 24, 2014, but petitioner

                                                 4

argues that the circuit court failed to engage in an appropriate balancing test or make appropriate
findings regarding the testimony about the prior alleged sexual and physical abuse. We disagree.
The circuit court’s consideration of the matter was apparent in the resulting orders when it
explained:

       Some of the violence that the witnesses testified to was not sexually related.
       According to the testimony there were two types of violence the [petitioner]
       showed toward the girls; sexually related and non-sex related violence. The State
       will be allowed to introduce evidence of the sexually related violence . . . to show
       lustful disposition to young girls in his family. The sexually related violence is
       part of the forcible compulsion and part of the event. The sex related violence
       shows a pattern. The sex related violence is proof of a motive of lustful
       disposition. . . . The State will not be allowed to introduce evidence of the
       violence that was non-sex related. . . . The non-sex related violence just shows
       that the [petitioner] is a mean person. This is exactly the type of character
       evidence that [Rule] 404(b) prevents.

We agree with the circuit court that the evidence was admissible for a legitimate purpose and
was more probative than prejudicial.7 We therefore find no error in this regard.
        Finally, petitioner argues that the circuit court erred in admitting petitioner’s DNA
samples and T.M.’s “blood stain collection card” into evidence. Petitioner contends that the
State’s investigator did not establish a proper chain of custody for these exhibits. “‘The
preliminary issue of whether a sufficient chain of custody has been shown to permit the
admission of physical evidence is for the trial court to resolve. Absent abuse of discretion, that
decision will not be disturbed on appeal’ Syllabus Point 2, State v. Davis, 164 W.Va. 783, 266
S.E.2d 909 (1980).” Syl. Pt. 6, State v. McCartney, 228 W.Va. 315, 719 S.E.2d 785 (2011). This
Court has plainly established that “[a] trial court's evidentiary rulings, as well as its application
of the Rules of Evidence, are subject to review under an abuse of discretion standard.” Syl. Pt. 4,
State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998). In this case, petitioner does not
allege or point to any evidence in the record to show that the evidence was not genuine or had
been tampered with in any manner. Further, the State’s investigator Mr. Spradlin testified during
the suppression hearing that petitioner’s buccal swab was in his exclusive possession until he
delivered the sample to the forensic lab. Similarly, Mr. Spradlin testified that upon receiving
T.M.’s “blood stain collection card” from the medical examiner’s office, he placed the card

       7
           This Court has held that

                 [c]ollateral acts or crimes may be introduced in cases involving child
                 sexual assault or sexual abuse victims to show the perpetrator had a lustful
                 disposition towards the victim, a lustful disposition towards children
                 generally, or a lustful disposition to specific other children provided such
                 evidence relates to incidents reasonably close in time to the incident(s)
                 giving rise to the indictment . . . .

             Syl. Pt. 2, in part, Edward Charles L., 183 W.Va. at 643, 398 S.E.2d at 125.


                                                  5
inside another envelope and “drove it straight . . . to the forensic [lab.]” Under the facts of this
case, the circuit court’s ruling admitting this evidence was not an abuse of discretion.8

       For the foregoing reasons, the circuit court’s December 1, 2014, order, is hereby
affirmed.

                                                                                         Affirmed.

ISSUED: November 23, 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




       8
         Upon a careful review of the appendix record on appeal, we observe a potential
discrepancy between the sentence imposed in the December 1, 2014, sentencing order and the
sentence required by the statute in effect at the time of the commission of petitioner’s crime. See
West Virginia Code § 61-8-12 (1931); see also Syl. Pt. 4, State v. Easton, 203 W.Va. 631, 510
S.E.2d 465 (1998) (“‘The statute in force at the time of the commission of an offense governs the
character of the offense, and generally the punishment prescribed thereby, unless, as provided by
our statute, the defendant elects to be punished as provided in an amendment thereof.’ Syllabus
point 4, State v. Wright, 91 W.Va. 500, 113 S.E. 764 (1922).”) The parties and circuit court may
wish to address this issue pursuant to the circuit court’s authority in Rule 35 of the West Virginia
Rules of Criminal Procedure.



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