       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                            September 2013 Term
                             ________________
                                                                     FILED
                                 No. 12-0301                    October 7, 2013
                              ________________                    released at 3:00 p.m.

                                                                RORY L. PERRY II, CLERK

                                                              SUPREME COURT OF APPEALS

                                                                   OF WEST VIRGINIA

                        STATE OF WEST VIRGINIA,

                               Respondent


                                      V.

                          BRYAN MAGGARD,

                               Petitioner

          ___________________________________________________

                Appeal from the Circuit Court of Cabell County

                    Honorable Alfred E. Ferguson, Judge

                             Case No.: 10-F-121


                      REVERSED AND REMANDED

           __________________________________________________

                        Submitted: September 10, 2013

                           Filed: October 7, 2013


Richard W. Weston, Esq.                    Patrick Morrisey, Attorney General

Connor D. Robertson, Esq.                  Scott E. Johnson, Senior Assistant

Weston Law Office                          Christopher S. Dodrill

Huntington, West Virginia                  Assistant Attorney General

Attorney for Petitioner                    Charleston, West Virginia

                                           Attorneys for Respondent

The Opinion of the Court was delivered PER CURIAM.

JUSTICE WORKMAN and JUSTICE LOUGHRY dissent and reserve the right to
file dissenting opinions.
                             SYLLABUS BY THE COURT




   1. “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.” Syllabus Point 4,


State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998).




   2. “‘“Rulings on the admissibility of evidence are largely within a trial court's sound

discretion and should not be disturbed unless there has been an abuse of discretion.” State

v. Louk, 171 W.Va. 639, 301 S.E.2d 596, 599 (1983).’ Syllabus Point 2, State v. Peyatt, 173


W.Va. 317, 315 S.E.2d 574 (1983).” Syllabus Point 7, State v. Miller, 175 W.Va. 616, 336


S.E.2d 910 (1985).





                                             i

PER CURIAM:


              The instant case is before the Court upon the appeal of Bryan Maggard,

Petitioner, from a conviction for one count of second degree sexual assault. Petitioner

alleges the following assignments of error: 1) the circuit court erred by allowing the State

to question the alleged victim regarding the Petitioner’s sexual history and portraying him

as a sexual predator; 2) the circuit court erred by excluding the alleged victim’s Twitter

statement under the Rape Shield Law; 3) the circuit court erred by refusing to strike three

different jurors for cause; 4) the State presented insufficient evidence to sustain a

conviction on Count One, sexual assault in the second degree; and 5) the jury reached a

compromise verdict that was not based on the evidence at trial. Upon reviewing the

petition, the response, the submitted appendix, and the arguments of counsel, this Court

concludes that, for the reasons set forth more fully below, the circuit court committed error

and therefore, the case must be reversed and remanded for a new trial.



                                             I.


                 FACTUAL AND PROCEDURAL BACKGROUND


              In September 2008, Petitioner Bryan Maggard logged into Facebook and

saw a “friend request” from a female named J.C.1 He accepted her friend request and the

two began chatting via Facebook and then began text messaging one another.



1 Pursuant to Rule 40(e) of the West Virginia Rules of Appellate Procedure, we will refer
to the alleged victim by her initials.

                                             1

Approximately a week later, Maggard and J.C. decided to meet in person. On the night of

September 27, 2008, J.C., who worked at a Huntington nightclub, ended her shift at

approximately 3:30 a.m. Maggard met J.C. outside the club following her shift and she

drove him to the “Marshall Rugby House” where he lived.             When the pair got to

Maggard’s home, he asked her if she would come in to watch a movie.



              Upon entering the rugby house, Maggard and J.C. went to his bedroom.

J.C. sat down in a chair and watched Maggard turn on the television; light candles; remove

his shirt, pants, and shoes; and climb into bed. J.C. alleges that she told Maggard that

“nothing sexual was going to happen.” Maggard then pulled J.C. by the hand from the

chair to the bed. While the two were kissing, Maggard rubbed J.C.’s crotch over her

shorts. J.C. alleges that she repeatedly told Maggard “no” and pushed his hand away

multiple times. Maggard conversely alleges that J.C. never told him “no.” Maggard

digitally penetrated J.C.’s vagina and thereafter, the two engaged in sexual intercourse.

J.C. alleges that she repeatedly tried to push Maggard away by pushing against his hips but

that he forced his penis into her vagina while holding her arms down. J.C. alleges that she

repeatedly said, “no.” Conversely, Maggard alleges that J.C. never told him “no,” and

that the two consensually engaged in sexual intercourse in different positions.



              Thereafter, Maggard went to the bathroom and then returned to his bedroom.

Maggard got back into the bed and asked J.C. to spend the night. She laid on the bed with

                                             2

Maggard and he fell asleep. At some point thereafter, she left the house and started to

drive to her home in Ohio. During the drive, she pulled over her car and called a friend to

take her to the hospital. J.C.’s friend, Krisha, took her to Cabell Huntington hospital.

Krisha then called her friend, Huntington Police Officer Todd Veazey, who met them at the

hospital.



              At the hospital, J.C. was examined by registered nurse Stacie King who

performed a rape kit. J.C. was visibly upset and crying. She gave a statement to Officer

Veazey. Detective Rodney Pell, who was thereafter assigned the case, reviewed J.C.’s

statement with her and took a statement from Maggard. On March 16, 2010, Maggard was

indicted on two counts of sexual abuse in the second degree (sexual intrusion without

consent) pursuant to West Virginia Code § 61-8B-4(a)(1) (1991). Count One charged

digital penetration. Count Two charged penile penetration. The case went to trial on April

5-6, 2011. The jury convicted Maggard on Count One (digital penetration) but acquitted

him on Count Two (penile penetration). On January 30, 2012, the circuit court sentenced

Maggard to ten to twenty-five years in prison, but suspended the sentence, placed him on

probation for five years, and required him to register as a sex offender for life.




                                              3

                                              II.


                                STANDARD OF REVIEW




              As it pertains to the applicable standard of review in this case, this Court has

consistently held 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).                 “‘“Rulings on the

admissibility of evidence are largely within a trial court's sound discretion and should not

be disturbed unless there has been an abuse of discretion.” State v. Louk, 171 W.Va. 639,

301 S.E.2d 596, 599 (1983).’ Syllabus Point 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d

574 (1983).” Syl. Pt. 7, State v. Miller, 175 W.Va. 616, 336 S.E.2d 910 (1985).



              With this standard in mind, we proceed to consider the merits of Maggard’s

appeal.



                                              III.


                                       DISCUSSION


              In his first assignment of error, Maggard alleges that the circuit court erred

by allowing the State to question the victim regarding his sexual history and portraying him

as a sexual predator. On direct examination at trial, the State asked J.C. why she did not

want to go into Maggard’s house when he kept persistently asking her to accompany him

                                               4

into the residence. J.C. answered, “I heard how he is.” The defense objected and said

“‘Heard how he is’ is completely outside the scope of what is going on here.” The circuit

court responded “I will let her answer that.” The State then asked, “and you said you

knew?” J.C. replied, “Yes. And how he was that he just wants to be with – he just wants to

get one thing from girls.” Importantly, the State repeated J.C.’s answers twice during its

closing argument. The first time, the State represented in closing,

              “[s]o she knows what he is like and she is not wanting to have
              sex at that time with him. That’s her decision to make and she
              says, ‘Look, I made this agreement with him. I am not going
              to have sex with him and I told him that.’”

              The second time the State mentioned J.C.’s comments in closing, the State

represented that “[t]hat’s why [J.C.] made that agreement with him. You heard what

[J.C.] said. ‘I had heard what he was like. I mean, I had heard these things about him.’”



              Maggard argues that these statements are improper 404(a) character

evidence, as they portray him as a sexual predator and suggest to the jury that J.C. was “just

next in line.” 2    Additionally, Maggard asserts that the testimony could also be

characterized as improper 404(b) testimony for which no pretrial notice or findings were

made because, while it was not clear if J.C. was referring to character evidence or specific




2 Rule 404(a) of the West Virginia Rules of Evidence states that “evidence of a person’s
character or a trait of character is not admissible for the purpose of proving that he or she
acted in conformity therewith on a particular occasion.”

                                              5

instances of conduct, her remarks were prejudicial.3 Maggard avers that he never placed

his character in evidence at any point in the trial and that the State did not indicate pre-trial

that it intended to use such 404(b) evidence.



               Conversely, the State contends that Maggard made an enigmatic objection

that did not clearly and specifically apprise the court of the legal grounds for his complaint.

The State asserts that Maggard’s objection was, at best, based on Rule 611(b)(2) of the

West Virginia Rules of Evidence4 or Rule 401 of the West Virginia Rules of Evidence.5



3   Rule 404(b) of the West Virginia Rules of Evidence provides that

               Evidence of other crimes, wrongs, or acts is not admissible to
               prove the character of a person in order to show that he or she
               acted in conformity therewith.          It may, however, be
               admissible for other purposes, such as proof of motive,
               opportunity, intent, preparation, plan, knowledge, identity, or
               absence of mistake or accident, provided that upon request by
               the accused, the prosecution in a criminal case shall provide
               reasonable notice in advance of trial, or during trial if the court
               excuses pretrial notice on good cause shown, of the general
               nature of any such evidence it intends to introduce at trial.

4   Rule 611(b)(2) of the West Virginia Rules of Evidence provides,

               Non-Party Witnesses. Cross-examination should be limited to
               the subject matter of the direct examination and matters
               affecting the credibility of the non-party witness. The court
               may, in the exercise of discretion, permit inquiry into
               additional matters as if on direct examination.

5   Rule 401 of the West Virginia Rules of Evidence provides,

               “Relevant evidence” means evidence having any tendency to

                                                6
The State also avers that J.C.’s answers were relevant to show that she would not have

consented to sexual relations with defendant. Third, the State argues that because Maggard

failed to raise a 404(b) objection, he waived the objection and the Court is precluded from

reviewing defendant’s 404(b) argument. See State v. DeGraw, 196 W.Va. 261, 272, 470

S.E.2d 215, 226 (1996).



              Upon reviewing the trial transcript and the arguments of the parties, we

conclude that the statements above constitute the precise type of character evidence that is

specifically barred by Rule 404(a) of the West Virginia Rules of Evidence.               The

statements at issue do not reference specific instances of “other crimes, wrongs, or acts” as

contemplated by Rule 404(b) of the West Virginia Rules of Evidence; rather, the

statements seek to demonstrate Rule 404(a) evidence of Maggard’s character, or a trait of

his character, that is not admissible for the purpose of proving that he acted in conformity

therewith on the night of the incident in this case. It is apparent from the record that the

statements “heard how he is” and “how he was that he just wants to be with – he just wants

to get one thing from girls” clearly insinuates that Maggard is a sexual predator.



              In determining whether defense counsel adequately preserved an objection to

the admission of these statements for the purposes of appellate review, we find that the

              make the existence of any fact that is of consequence to the
              determination of the action more probable or less probable
              than it would be without the evidence.

                                             7
very nature of J.C.’s statement pertaining to Maggard’s character makes the specific

ground for defense counsel’s objection sufficiently apparent from the context of the

discussion had before the trial court. Rule 103 of the West Virginia Rules of Evidence

states, in relevant part:

           (a) Effect of erroneous ruling.—Error may not be predicated upon
               a ruling which admits or excludes evidence unless a substantial
               right of the party is affected, and

           (1) Objection.—In case the ruling is one admitting evidence, a
           timely objection or motion to strike appears of record, stating the
           specific ground of objection, if the specific ground was not
           apparent from the context....


               J.C. was the first witness called by the State and at the time the State sought

to elicit this testimony, defense counsel had not yet begun his cross-examination of J.C.

Thus, the circuit court would not have perceived that a Rule 611(b)(2) objection was being

made. Furthermore, we are not convinced that the objection was made on relevancy

grounds.    J.C.’s statements clearly attack Maggard’s reputation and character as an

alleged sexual predator. This type of evidence is obviously relevant to the facts at issue in

this sexual assault case, but it is simply not admissible due to its inherently prejudicial

nature under Rule 404(a). Our conclusion is also supported by the fact that the trial court

never sought clarification from defense counsel asking what grounds the objection

covered.




                                              8

              The trial in this case was conducted to determine whether Maggard was

guilty of committing the two acts of sexual assault upon which he was indicted (digital and

penile penetration) on September 27, 2008. Evidence of his character as a sexual predator

was not admissible for the purpose of proving that he acted in conformity therewith on the

night of September 27, 2008, and the admission of these statements could have

prejudicially swayed the jury. At the time the objection was raised by defense counsel,

the trial court did not attempt to clarify the grounds on which the objection was asserted

and the prosecutor likewise did not respond. This leads us to conclude that the nature of
                                                                                                6
the objection was apparent from the context and was sufficiently understood.



6 Even if this Court were to find the objection insufficient to preserve a 404(a) error, this
Court has recognized that,

              [p]ursuant to W.Va.R.Evid. 103(d) we may address “plain
              errors affecting substantial rights although they were not
              brought to the attention of the court.” We have noted in the
              past that the plain error “doctrine is to be used sparingly and
              only in those circumstances where substantial rights are
              affected, or the truth-finding process is substantially impaired,
              or a miscarriage of justice would otherwise result.” Syl. pt. 4,
              in relevant part, State v. England, 180 W.Va. 342, 376 S.E.2d
              548 (1988). More recently, we held that in order “[t]o trigger
              application of the ‘plain error’ doctrine, there must be (1) an
              error; (2) that is plain; (3) that affects substantial rights; and (4)
              seriously affects the fairness, integrity, or public reputation of
              the judicial proceedings.” Syl. pt. 7, State v. Miller, 194 W.Va.
              3, 459 S.E.2d 114 (1995). We further explained in Miller,
              supra, that when determining whether the error is plain we
              look to see if the error is clear or obvious. Id. at 18, 459 S.E.2d
              at 129. If the error is clear or obvious, then it must affect
              substantial rights. In other words, it must be prejudicial,
              affecting the outcome of the case. Id.

                                                9

Accordingly, we conclude that the circuit court erroneously admitted the alleged victim’s

above-referenced character statements and therefore, the case must be reversed and

remanded for a new trial.7



                                            IV.


                                     CONCLUSION


              For the above-stated reasons, we reverse the Petitioner’s conviction of Count

One of the indictment (digital penetration) and remand the case for further proceedings

consistent with this Opinion.



                                                                  Reversed and Remanded.




Voelker v. Frederick Business Properties Co., 195 W. Va. 246, 465 S.E.2d 246 (1995). In
this case, there can be no question that the error was clear and obvious, and it affected the
substantial rights of Maggard, thus seriously affecting the fairness and integrity of the
judicial proceedings in this case.

7To the extent that we reverse this matter on the first assignment of error presented, we
will not discuss the Petitioner’s remaining assignments of error.

                                             10
