                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                          FILED
                                                                                 March 23, 2020
vs.) No. 18-0043 (Cabell County 16-F-316)                                       EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Aaron Miles,
Defendant Below, Petitioner


                               MEMORANDUM DECISION

        Petitioner Aaron Miles, by counsel Owen A. Reynolds, appeals the order of the Circuit
Court of Cabell County, entered on October 3, 2017, denying his motion for a new trial and motion
for post-verdict judgment of acquittal subsequent to his conviction of one count of second-degree
murder; one count of murder of a child by a parent, guardian, or custodian; one count of death of
a child by a parent, guardian, or custodian; two counts of child abuse causing bodily injury; two
counts of child neglect creating a substantial risk of bodily injury; and one count of conspiracy to
commit child abuse causing bodily injury. Pursuant to the circuit court’s sentencing order entered
on January 30, 2018, petitioner is sentenced to a term of imprisonment in the West Virginia State
Penitentiary for life, without mercy, for his conviction of murder of a child by a parent, guardian,
or custodian, together with various other sentences for the remaining convictions. Respondent
State of West Virginia appears by counsel Scott E. Johnson.

       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.

        Mr. Miles was the stepfather of Jayden, a three-year-old boy whom Mr. Miles and his wife,
Mariya Jones, found unresponsive in the bathroom of their home after having left the boy alone.
Paramedics transported Jayden to Cabell-Huntington Hospital, but determined he was dead by the
time they arrived there. Jayden’s autopsy identified an intestinal perforation, caused by blunt force
trauma, which led to lethal septic shock. Mr. Miles and Ms. Jones were indicted on numerous
charges that related to Jayden’s death and the neglect of other children in the home. Both Mr. Miles
and Ms. Jones were found guilty, after a jury trial, of most of the indicted charges, including
murder of a child by a parent, guardian, or custodian, upon which count Mr. Miles was sentenced
to a term of imprisonment for life in the West Virginia State Penitentiary, without mercy. On
appeal, Mr. Miles asserts that the circuit court erred in nine respects: 1) failing to sever his trial
from that of Ms. Jones; 2) failing to exclude gruesome photographs of Jayden’s body; 3) failing to

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allow the reading of the statement of an unavailable witness; 4) declining to instruct the jury to
draw an adverse inference from the State’s failure to call a material witness; 5) failing to give the
co-defendants additional peremptory challenges; 6) allowing testimony, by a State’s witness,
concerning “child torture”; 7) allowing cumulative error affecting Mr. Miles’ right to a fair trial;
8) denying Mr. Miles’ motion for acquittal and renewed motion for acquittal; and 9) denying Mr.
Miles motion for a new trial. We will discuss the standard of review applied to each assignment
of error in turn.

         We begin with Mr. Miles’ first assignment of error, wherein he argues that the circuit court
erred in “failing” to sever his trial from that of his co-defendant, though he did not seek that relief
below. Rather, he argues that the circuit court erred in denying the motion to sever filed by Ms.
Jones. Generally, “[t]his Court will not reverse a denial of a motion to sever properly joined
defendants unless the petitioner demonstrates an abuse of discretion resulting in clear prejudice.”
Syl. Pt. 3, State v. Boyd, 238 W.Va. 420, 796 S.E.2d 207 (2017). We have additionally instructed
that a circuit court should sever the trial of co-defendants “only if there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants or prevent the jury from
making a reliable judgment about guilt or innocence.” Syl. Pt. 5, id., in part (emphasis added). The
prejudice to Mr. Miles is evident, he argues, in that he and Ms. Jones were “forced to try a case
against . . . each other, leading to unfair trials for both. . . .” This, he states, affected his theory of
defense: that he was unaware of the extent of Jayden’s injuries. We disagree that Mr. Miles was
so prejudiced. As described in greater detail below, Jayden suffered trauma to a degree so shocking
that no one living with him could credibly claim ignorance. More importantly, we stress that the
potential prejudice to a co-defendant is evaluated in large measure on the admissibility of evidence
as to each defendant. See id. at 432, 796 S.E.2d at 219. That is, is the evidence co-extensive? In
this case, not only does Mr. Miles fail to identify evidence admissible as to his co-defendant but
not as to him, but he acknowledges that his defense depended on the introduction of inflammatory
text messages sent from Ms. Jones to her mother, wherein she described “beating” her son and
expressed the possibility that she would “kill Jayden.” There is no error in the circuit court’s denial
of Ms. Jones’s motion to sever.

       Next, Mr. Miles argues that postmortem photographs offered by the State were
prejudicially gruesome. We have explained:

                Rule 401 of the West Virginia Rules of Evidence requires the trial court to
        determine the relevancy of the exhibit on the basis of whether the photograph is
        probative as to a fact of consequence in the case. The trial court then must consider
        whether the probative value of the exhibit is substantially outweighed by the
        counterfactors listed in Rule 403 of the West Virginia Rules of Evidence. As to the
        balancing under Rule 403, the trial court enjoys broad discretion. The Rule 403
        balancing test is essentially a matter of trial conduct, and the trial court’s discretion
        will not be overturned absent a showing of clear abuse.

Syl. Pt. 10, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994). Petitioner does not identify
specific photographs, but instead generally assails the use of all images captured during Jayden’s
autopsy. The deputy chief medical examiner testified that, in addition to the fatal intestinal injury,
she found numerous injuries in and on Jayden’s body, in various stages of healing, depicted in the

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photographs. These depictions included numerous scars and contusions on all areas of the body,
two black eyes, an abrasion over the nose, a bruised jaw, several burns to Jayden’s chest and hands
and other areas, an inner-mouth injury, several subgaleal hemorrhages, a fractured rib, a leg muscle
hardened from blunt force trauma, and a hemorrhage in the bowel area. This testimony, and thus
the supporting photographic documentation, was important to the many charges relating to
Jayden’s abuse, and not just the murder charge that was based on the single, fatal blow. There was
no error in the admission of the photographs.

        Mr. Miles’ third and fourth assignments of error concern the non-appearance of defense
witness Greg Bailey, a friend Mr. Miles summoned to his home upon finding Jayden in the
bathroom, and the circuit court’s declining Mr. Miles’ request for an adverse inference instruction
when the State did not call Mr. Bailey. According to Mr. Miles, he served a subpoena at Mr.
Bailey’s residence, and the subpoena was accepted by Mr. Bailey’s brother. Mr. Bailey did not
appear at trial, and Mr. Miles moved for the introduction of the statement that Mr. Bailey gave to
police officers during the investigation. The circuit court denied Mr. Miles’ motion on the ground
that Mr. Bailey was not an “unavailable” witness. Later, Mr. Miles asked the circuit court to
instruct the jury “that the failure of the State to call [the available material witness] gives rise to
the inference that had [the witness] testified, his/her testimony would have been adverse to the
State’s case.” The circuit court refused to so instruct the jury.

        In considering these third and fourth assignments of error, we begin with the premise 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. 9, State v. Whittaker, 221 W. Va. 117, 650 S.E.2d 216 (2007) (citations
omitted). We agree with the circuit court that Mr. Miles failed to show that Mr. Bailey was
unavailable. Rule 804(a) of the West Virginia Rules of Evidence explains that a “declarant is
considered unavailable” if, among other situations, a party has been unable to procure the
declarant’s trial attendance or testimony through reasonable means. We have explained that a party
seeking a hearsay exemption under this standard must “show the unavailability of the witness by
proving that they have made a good-faith effort to secure the declarant as a witness for trial by
using substantial diligence in procuring the declarant’s attendance (or testimony) by process or
other reasonable means.” Syl. Pt. 2, in part, State v. Blankenship, 198 W. Va. 290, 480 S.E.2d 178
(1996). Mr. Miles avers that he “tried for approximately two weeks to track down and subpoena”
the witness, but he does not offer the date that the subpoena was served or upon what date Mr.
Bailey was commanded to appear. Mr. Miles offers no information about any steps he took to
procure Mr. Bailey’s attendance when he failed to appear. On the penultimate day of trial, Mr.
Miles did not seek the circuit court’s assistance in procuring Mr. Bailey’s attendance, but instead
asked that the statement be admitted. Under these circumstances, we find no evidence that Mr.
Miles used “substantial diligence” and we, thus, find no abuse of discretion in the circuit court’s
determination that Mr. Bailey was not unavailable.

       Concerning the circuit court’s subsequent refusal to give Mr. Miles’ requested adverse
inference instruction, we note that

                “[a] trial court’s refusal to give a requested instruction is reversible only if:
       (1) the instruction is a correct statement of the law; (2) it is not substantially covered

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       in the charge actually given to the jury; and (3) it concerns an important point in
       the trial so that the failure to give it seriously impairs a defendant’s ability to
       effectively present a given defense.”

Syl. Pt. 2, State v. Wilkerson, 230 W. Va. 366, 738 S.E.2d 32 (2013)(citations omitted). The circuit
court’s refusal did not so impede Mr. Miles’ defense. Mr. Bailey was known and available to both
parties, and the State bore no special responsibility to offer this witness.

       We turn to Mr. Miles’ fifth assignment of error, that the circuit court erred in denying a
motion, filed by Ms. Jones but not joined by Mr. Miles, to grant the co-defendants additional
peremptory challenges. We are governed by this standard:

              When an accused, who is being tried jointly for a felony offense with co-
       defendants, seeks to avoid the sharing of six peremptory challenges, as provided
       under West Virginia Code § 62-3-8 (2014), he or she must file a motion expressly
       requesting additional peremptory challenges in accordance with Rule 24(b)(2) of
       the West Virginia Rules of Criminal Procedure. The trial court’s ruling on a Rule
       24(b)(2) motion shall be at its sole discretion.

Syl. Pt. 1, State v. Gibbs, 238 W. Va. 646, 797 S.E.2d 623 (2017)(emphasis added). The
requirement that a defendant request additional challenges by motion is not subject to flexibility.
Mr. Miles filed no such motion, and the circuit court did not abuse its discretion in granting no
additional peremptory challenges.

        In his sixth assignment of error, Mr. Miles argues that the circuit court erred in allowing
Dr. Barbara Knox, a board-certified child abuse pediatrician from the University of Wisconsin
School of Medicine and Public Health, to testify that Jayden was subjected to “child torture” as a
form of child abuse. Dr. Knox further testified that the injuries from Jayden’s abuse were so severe
that both of the adults in the household would have been aware and would have participated. We
have 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. 9, Whittaker (citations omitted). Mr. Miles argues that the term
“child torture” is not a widely-accepted medical diagnosis, and that the term itself is prejudicial.
Thus, we also consider the circuit court’s evaluation of the proffered testimony, for which the
circuit court conducted a Daubert1 hearing, as follows:

                In analyzing the admissibility of expert testimony under Rule 702 of the
       West Virginia Rules of Evidence, the trial court’s initial inquiry must consider
       whether the testimony is based on an assertion or inference derived from the
       scientific methodology. Moreover, the testimony must be relevant to a fact at issue.
       Further assessment should then be made in regard to the expert testimony’s
       reliability by considering its underlying scientific methodology and reasoning. This
       includes an assessment of (a) whether the scientific theory and its conclusion can
       be and have been tested; (b) whether the scientific theory has been subjected to peer


       1
           See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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       review and publication; (c) whether the scientific theory’s actual or potential rate
       of error is known; and (d) whether the scientific theory is generally accepted within
       the scientific community.

Syl. Pt. 2, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. den., 511 U.S. 1129, 114
S.Ct. 2137, 128 L.Ed.2d 867 (1994). We agree with the State that the evidence considered by the
circuit court—that Dr. Knox published a peer-reviewed study on the subject, and Dr. Knox’s
uncontroverted testimony that “child torture” is a diagnosis accepted among pediatricians
practicing in the care of abused children—satisfied the circuit court’s gate-keeping responsibility.

        In his seventh assignment of error, Mr. Miles asks the Court to find that the errors he
describes, if individually harmless, cumulatively interfered with his right to a fair trial. The
“cumulative error” doctrine provides that “[w]here the record of a criminal trial shows that the
cumulative effect of numerous errors committed during the trial prevented the defendant from
receiving a fair trial, his conviction should be set aside, even though any one of such errors standing
alone would be harmless error.” Syl. Pt. 12, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163,
(1995)(citations omitted). Having found no error, we necessarily find that the doctrine does not
apply to the case before us.

        At the conclusion of the State’s case-in-chief, Mr. Miles moved for judgment of acquittal,
and he later renewed that motion. The circuit court’s denial of the same is the subject of Mr. Miles’
eighth assignment of error. The evidence, he argues, was insufficient to sustain his conviction. We
have explained:

                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 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.

Syl. Pt. 1, id. Mr. Miles’ challenge to the sufficiency of the evidence is grounded in large part on
the testimony of his expert witness, Dr. John Fortunato, who testified that it was “conceivable”
that Jayden’s injury could have resulted from a blow to the back, but he thought it “a little unusual”
that such a powerful blow could have been delivered without causing damage to Jayden’s pancreas,
which was intact. Nevertheless, Dr. Fortunato agreed that Jayden suffered long-term physical
abuse, and he agreed that blunt force trauma would be “toward the top of the list” of the possible
causes of Jayden’s deadly perforation. Dr. Fortunato disputed that a patient would categorically
exhibit emergent symptoms, and opined that the degree of symptoms apparent to an onlooker
would vary. This was but a small part of the evidence considered by the jury. Both Dr. Knox and
the deputy chief medical examiner testified that Jayden’s intestinal perforation was most certainly
caused by blunt force trauma. As the deputy chief medical examiner explained, that blow was
likely delivered by a fist, boot, or other object as Jayden’s body was pressed against a solid surface,
such as a floor or a wall. This, together with testimony of a family friend who detailed his
observation of Mr. Miles’ and Ms. Jones’s abuse of Jayden, was certainly a sufficient basis for Mr.

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Miles’ conviction.

         Mr. Miles’ final assignment of error addresses the circuit court’s denial of his motion for a
new trial. “In reviewing challenges to findings and rulings made by a circuit court, we apply a two-
pronged deferential standard of review. We review the rulings of the circuit court concerning a
new trial and its conclusion as to the existence of reversible error under an abuse of discretion
standard, and we review the circuit court’s underlying factual findings under a clearly erroneous
standard. Questions of law are subject to a de novo review.” Syl. Pt. 3, State v. Vance, 207 W. Va.
640, 535 S.E.2d 484 (2000). Inasmuch as Mr. Miles’ argument in support of this assignment of
error is dependent on the validity of the assignments of error addressed above, we find no error.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.


ISSUED: March 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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